Exhibit 10-15
ROCHESTER GAS AND ELECTRIC CORPORATION
SEVERANCE AGREEMENT
This Severance Agreement is made, effective as of January 1, 1999,
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by and between Rochester Gas and Electric Corporation, a New York corporation
having its principal place of business in Rochester, New York (the "Company"),
and J. Xxxx Xxxxxx, an individual currently residing in Pittsford, New York (the
"Employee").
1. Purposes. The Company's Board of Directors considers the
creation and retention of a sound and vital management team to be essential to
protecting and enhancing the best interests of the Company, its customers and
its shareowners. In this connection, the Company recognizes that if the
possibility of a Change of Control arises, the uncertainty and discomfort it may
raise could result in the departure or distraction of management personnel
during the period leading up to and during a possible Change of Control to the
detriment of the Company, its customers and its shareowners. Furthermore, in
addition to their regular duties management will be called upon during this
period to assist in the assessment of third party proposals, to advise the Board
as to whether such proposals would be in the best interests of the Company, its
customers and its shareowners and to take such other action as the Board may
determine appropriate. Accordingly, to assure the Company that it will have the
continued dedication of the Employee and the availability of his advice and
counsel notwithstanding the possibility, threat or occurrence of a bid to take
over control of the Company, and to induce the Employee to remain in the employ
of the Company, the Board has determined that it is in the Company's best
interests to provide the Employee with certain benefits in the event of the
Employee's termination of employment under the terms and conditions below.
2. Employee's Services During Attempted or Actual Change of
Control. In the event a third party takes any steps designed to effect a
Change of Control, the Employee agrees not to effect a Voluntary Termination,
and to render the services contemplated in paragraph 1, until the third party
has abandoned or terminated efforts to effect a Change of Control or until three
months after an actual Change of Control has occurred.
3. Payment of Severance Amount. In the event of an Involuntary
Termination of the Employee's employment by the Company or any subsidiary or
successor of the Company occurring within three years after a Change of Control,
then the Company shall pay the Employee a lump sum amount equal to the Severance
Amount, payable within 15 business days after the Termination Date, plus such
other benefits as may be provided in subsequent provisions of this Agreement.
4. Definitions. All the terms defined in this paragraph 4 shall
have the meanings given below throughout this Agreement.
(a) "Annual Salary" shall, as determined on the Termination
Date, be equal to the greater of:
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i) the highest annual compensation (including base
salary and bonus) paid or payable to the Employee with respect to any twelve
(12) consecutive month period, as selected by the Employee, during the three
years ending with the Termination Date, or
ii) the Employee's annual salary plus bonus on the
Termination Date.
"Bonus" for the purpose of this definition of Annual Salary shall mean the
Executive Incentive Plan (EIP) bonus for the Employee's final year or the
average of the bonuses for the three years prior to the Termination Date,
whichever is greater.
(b) "Change in Duties" shall mean any one or more of the
following:
i) a significant change in the nature or scope of the
Employee's authorities or duties from those applicable to her/him immediately
prior to the date on which a Change of Control occurs;
ii) a reduction in the Employee's Annual Salary from
that provided to her/him immediately prior to the date on which a Change of
Control occurs;
iii) a diminution in the Employee's eligibility to
participate in bonus, incentive award and other compensation plans which provide
opportunities to receive compensation, from the greater of:
the opportunities provided by the Company (including its
subsidiaries) for executives with comparable duties; or
the opportunities under any such plans under which she/he
was participating immediately prior to the date on which
a Change of Control occurs;
iv) a diminution in employee benefits (including but not
limited to medical, dental, life insurance and long-term disability plans) and
perquisites applicable to the Employee, from the greater of:
the employee benefits and perquisites provided by the
Company (including its subsidiaries), to executives with
comparable duties; or
the employee benefits and perquisites to which the
Employee was entitled immediately prior to the date on
which a Change of Control occurs;
v) a change in the location of the Employee's principal
place of employment by the Company (including its subsidiaries) by more than
fifty miles from the
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location where she/he was principally employed immediately prior to the date
on which a Change of Control occurs; or
vi) a reasonable determination by the Employee that,
as a result of a Change of Control and a change in circumstances thereafter
significantly affecting her/his position, she/he is unable to exercise the
authorities, powers, functions or duties attached to her/ his position
immediately prior to the date on which a Change of Control occurs.
(c) a "Change of Control" shall be deemed to have occurred if:
i) any "person," including a "group" as determined in
accordance with Section 13(d)(3) of the Securities Exchange Act of 1934 (the
"Exchange Act"), is or becomes the beneficial owner, directly or indirectly, of
securities of the Company representing 20 percent or more of the combined voting
power of the Company's then outstanding Voting Securities;
ii) as a result of, or in connection with, any tender
offer or exchange offer, merger or other business combination, sale of assets or
contested election, or any combination of the foregoing transactions (a
"Transaction"), the persons who were directors of the Company before the
transaction shall cease to constitute a majority of the Board of Directors of
the Company or any successor to the Company;
iii) the Company is merged or consolidated with another
corporation and as a result of the merger or consolidation less than 50 percent
of the outstanding Voting Securities of the surviving or resulting corporation
(or ultimate parent of such surviving or resulting corporation) shall then be
owned in the aggregate by the stockholders of the Company immediately prior to
such merger or consolidation, other than (x) affiliates within the meaning of
the Exchange Act or (y) any party to the merger or consolidation;
iv) a tender offer or exchange offer is made and
consummated for the ownership of securities of the Company representing 20
percent or more of the combined voting power of the Company's then outstanding
Voting Securities; or
v) the Company transfers substantially all of its
assets to another corporation which is not a wholly-owned subsidiary of the
Company.
(d) "Involuntary Termination" shall mean any termination which:
i) does not result from a resignation by the Employee
(other than a resignation pursuant to clause ii of this subparagraph (d)), or
ii) results from a resignation following any Change in
Duties; provided, however, the term "Involuntary Termination" shall not include:
x. a Termination for Cause, or
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y. any termination as a result of death,
disability, or normal retirement pursuant to a retirement plan to which the
Employee was subject prior to any Change of Control.
(e) "Severance Amount" is equal to three (3) times the
Employee's Annual Salary, i.e. for a period of 36 months.
(f) "Termination for Cause" shall mean only a termination as
a result of fraud, misappropriation of, or intentional material damage to, the
property or business of the Company (including its subsidiaries), or commission
of a felony by the Employee.
(g) "Voluntary Termination" shall mean any termination, which
is not:
i) an Involuntary Termination;
ii) a Termination for Cause; or
iii) the result of death, disability, or normal
retirement pursuant to a retirement plan to which the Employee was subject prior
to any Change of Control.
(h) "Voting Securities" shall mean any securities which
ordinarily possess the power to vote in the election of directors without the
happening of any pre-condition or contingency.
(i) "Termination Date" shall mean the date on which the
Employee's employment terminates.
5. Additional Payment for Excise Tax on Golden Parachute Payment.
It is anticipated that the payments to be made and benefits to be provided to
the Employee under this Agreement and other agreements (collectively, the
"Change of Control Amounts") may become subject to the excise tax imposed by
Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code") (or
any similar tax that may hereafter be imposed), on account of "excess parachute
payments" as defined in Section 280G of the Code. In the event such excise tax
is payable, the Company shall pay to the Employee, in addition to the amounts
payable pursuant to paragraph 3 of this Agreement and any other Change of
Control Amounts, an additional amount which, together with any federal, state or
local excise or income taxes payable by the Employee on such additional amount,
will provide the Employee with a sum on a net after-tax basis equal to the
amounts he would have received if the excise tax were not applicable to the
Change of Control Amounts. The determination of the amount to be paid hereunder
shall be made at the expense of the Company by the independent certified public
accounting firm acting as auditors for the Company on the date of a Change of
Control (or another accounting firm designated by that firm).
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6. Other Benefits.
(a) Health and Death Benefits. From the date benefits become payable
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under paragraph 3 through the end of the number of months used in determining
the Employee's Severance Amount in paragraph 4(e), the Company shall continue to
provide the Employee with life, accident, death and health insurance plans and
benefits to the same extent such benefits are provided during this period to
active employees holding positions equivalent to the position of the Employee
immediately prior to his termination. The Company's share of the cost of
providing such benefits shall be the same as its share of the benefit costs for
providing such benefits to other employees holding positions equivalent to the
position the Employee held immediately prior to his termination.
(b) Outplacement and Relocation. The Company shall also reimburse
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the Employee the aggregate expenses the Employee incurs for outplacement
assistance or relocation expenses in order to pursue other business
opportunities within two (2) years of the Termination Date which are not
reimbursed by another employer.
(c) Pension. To the extent that any Company supplemental executive
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retirement plan benefit formula(s) takes into account service, age and annual
compensation, the Employee shall be given credit under the formula(s) for (i)
the same number of months used in determining the Employee's Severance Amount in
paragraph 4(e), and (ii) annual compensation increases equal to the highest base
salary increases received by the Employee in the three years prior to the
Termination Date and bonus payouts at target.
(d) Benefits of General Applicability. The Employee shall remain
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eligible to receive other Company benefits that apply by their terms to persons
who terminate employment with the Company.
(e) Incentive Compensation. Any awards previously made shall vest on
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the Termination Date and be computed and paid notwithstanding any contrary plan
provisions provided that, if the plan providing for any such award stipulates an
earlier date for vesting, such provision shall control.
7. Legal Fees. The Company shall pay all legal fees and
expenses the Employee may incur as a result of any litigation brought to enforce
or interpret any provision of this Agreement, regardless of outcome.
8. Obligations of Employee. Employee agrees that upon
termination of employment he will turn over to the Company all materials and
documents, whether written or electronic, that pertain to the operation,
products, services, processes, plans, business or customers of the Company.
Employee also agrees not to disclose to any person any confidential information
of the Company. If the Employee fails to return materials required to be
returned or discloses confidential information of the Company to any person, all
payments and benefits still remaining to be paid or offered to the Employee
under this Agreement shall be forfeited.
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9. Notices. Notices and all other communications under this
Agreement shall be in writing and shall be deemed given when personally
delivered or when mailed by United States registered or certified mail, return
receipt requested, postage prepaid, addressed as follows:
If to the Company, to:
Rochester Gas and Electric Corporation
00 Xxxx Xxxxxx
Xxxxxxxxx, Xxx Xxxx 00000-0000
ATTENTION: Group Manager, Human Resource Services
If to the Employee, to:
J. Xxxx Xxxxxx
00 Xxxxxx Xxxx
Xxxxxxxxx, Xxx Xxxx 00000
or to such other address as either party may furnish to the other in writing,
except that a notice of a change of address shall be effective only upon
receipt.
10. Applicable Law. This contract is entered into under, and
shall be governed for all purposes by, the laws of the State of New York.
11. Severability. If a court of competent jurisdiction
determines that any provision of this Agreement is invalid or unenforceable,
then the invalidity or unenforceability f that provision shall not affect the
validity or enforceability of any other provision of this Agreement and all
other provisions shall remain in full force and effect.
12. Withholding of Taxes. The Company shall withhold from any
benefits payable under this Agreement all Federal, state, city or other taxes as
may be required pursuant to any law, governmental regulation or ruling.
13. Not an Employment Agreement. Nothing in this Agreement shall
give the Employee any rights (or impose any obligations to continued employment
by the Company or any subsidiary or successor of the Company), nor shall it give
the Company any rights (or impose any obligations) for the continued performance
of duties by the Employee for the Company or any subsidiary or successor of the
Company.
14. No Assignment. The Employee's right to receive payments or
benefits under this Agreement shall not be assignable or transferable, whether
by pledge, creation of a security interest or otherwise, other than a transfer
by will or by the laws of descent or distribution. In the event of any
attempted assignment or transfer contrary to this paragraph, the Company shall
have no liability to pay any amount so attempted to be assigned or transferred.
This Agreement shall inure to the benefit of and be enforceable by the
Employee's personal or legal representatives, executors, administrators,
successors, heirs, distributees, devisees and
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legatees.
15. Successors. This Agreement shall be binding upon and inure
to the benefit of the Company, its successors and assigns (including, without
limitation, any company into or with which the Company may merge or
consolidate). The Company agrees that it will not effect the sale or other
disposition of all or substantially all of its assets unless either (i) the
person or entity acquiring the assets or a substantial portion of the assets
shall expressly assume by an instrument in writing all duties and obligations of
the Company under this Agreement, or (ii) the Company shall provide, through the
establishment of a separate reserve for the payment in full of all amounts which
are, or may reasonably be expected to become, payable to the Employee under this
Agreement.
16. Other Benefits and Compensation. The compensation and
benefits provided hereunder shall not limit or reduce compensation or benefits
otherwise payable to Employee pursuant to arrangements between Employee and the
Company, unless specific reference to any such reduction or limit is made
herein. It is not intended that this Agreement constitute a waiver of rights
under federal, state or local law, including, without limitation, Title VII of
the Civil Rights Act of 1964, the Age Discrimination in Employment Act and the
Employee Retirement Income Security Act of 1974.
17. Payment Obligations Absolute. The Company's obligation to
pay the Employee the compensation and to make the arrangements provided herein
shall be absolute and unconditional and shall not be affected by any
circumstances, including, without limitation, any set-off, counterclaim,
recoupment, defense or other right that the Company may have against him or
anyone else. All amounts payable by the Company hereunder shall be paid without
notice or demand. Each and every payment made hereunder by the Company shall be
final and the Company will not seek to recover all or any part of such payment
from the Employee or from whosoever may be entitled thereto, for any reason
whatsoever.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered as of January 20, 1999 .
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ROCHESTER GAS AND ELECTRIC
CORPORATION
By: s/ Xxxxxx X. Xxxxxxxx
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s/ X. X. Xxxxxx Xxxxxx X. Xxxxxxxx
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Employee Its: Chairman of the Board, President and
Chief Executive Officer
