EXHIBIT A 10.5.2
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EXHIBIT
A 10.5.2
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FORM
OF CHANGE IN CONTROL AGREEMENT
THIS CHANGE IN
CONTROL AGREEMENT with an effective date of
___________ (this “Agreement”), is made by and between Central
Vermont Public Service Corporation (“Company”), and ___________________
(“Executive”).
WHEREAS,
the Board of Directors of Company (the “Board”) recognizes that the
possibility of a Change in Control (as hereinafter defined) of Company
exists and that such possibility, and the uncertainty it may cause, may
result in the departure or distraction of key management employees of
Company or of a Subsidiary (as hereinafter defined) to the detriment of
Company and its stockholders;
WHEREAS,
Executive is a key management employee of Company or of a
Subsidiary;
WHEREAS,
the Board has determined that Company should encourage the continued
employment of Executive and the continued dedication of Executive to his
assigned duties without distraction as a result of the circumstances
arising from the possibility of a Change in Control;
WHEREAS,
the Company and Executive are parties to the Change in Control Agreement
dated as of _______________ (the “Original
Agreement”);
WHEREAS,
the American Jobs Creation Act of 2004 included new statutory rules under
Section 409A of the Internal Revenue Code of 1986, as amended (“Code”)
that substantially altered the income tax treatment of compensation that
is regarded, under those rules, as deferred pursuant to a nonqualified
deferred compensation plan;
WHEREAS,
under Section 409A, unless certain limitations on payment and other
requirements are provided for in a deferred compensation plan,
participants may be subject to regular income tax on amounts payable
pursuant to such deferred compensation plan before payments are made as
well as to a 20% excise tax;
WHEREAS,
the Original Agreement is subject to the requirements of Section
409A;
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WHEREAS,
the Original Agreement will, in accordance with its terms, terminate on
April 5, 2009; and
WHEREAS,
the Company and Executive desire to enter into a new change in control
agreement that complies with the requirements of Section 409A and
incorporates other important changes to the terms of the Original
Agreement, and to have such new agreement take effect on April 6,
2009.
NOW
THEREFORE, in consideration of the premises and the mutual
covenants herein contained, Company and Executive hereby agree as
follows:
1. Defined
Terms. For purposes of this Agreement, the following
terms shall have the meanings indicated below:
“Annual
Incentive Plan” shall mean the Central
Vermont Public Service Corporation Management
Incentive Plan, and any one or more other formalized plans, if any,
in which Executive is or may become eligible to participate providing
incentive compensation payable in cash to eligible participants determined
on the basis of a measuring period not in excess of 12 calendar months,
but shall expressly exclude, without limitation, the Central
Vermont Public Service Corporation Performance
Share Incentive Plan (the “Performance Share Plan”), the
Central
Vermont Public Service Corporation Officers’ Supplemental Retirement and
Deferred Compensation Plan, the Deferred
Compensation Plan for Officers and Directors of Central Vermont Public
Service Corporation, the Central
Vermont Public Service Corporation Omnibus Stock
Plan, and any plan qualified or intended to be qualified under Code
Section 401(a) and any amendment or restatement of, or successor plan to,
any of the foregoing plans in effect from time to time, and any executive
fringe benefits.
“Annual
Incentive Target” shall mean with respect to any measuring period,
the amount of cash compensation that would be payable to Executive under
the Annual Incentive Plan for such measuring period, computed assuming
that the target level of performance has been achieved with respect to a
performance goal identified in accordance with the terms of the Annual
Incentive Plan.
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“Board”
shall have the meaning provided for in the first whereas clause
above, however, it shall include, unless specifically stated otherwise,
any committee of the Board to which the Board has delegated authority to
act on its behalf.
“Cause”
for termination by Company of Executive’s employment shall
mean:
(i) the
willful failure by Executive substantially to perform Executive’s duties
with Company or a Subsidiary, (other than any failure resulting from
Executive’s incapacity due to Executive’s Disability, or any actual
failure after the issuance of a Notice of Termination for Good Reason by
Executive in accordance with paragraph (A) of Section 8)) that continues
for at least 30 calendar days after the Board delivers to Executive a
written demand for performance that identifies specifically and in detail
the manner in which the Board believes that Executive willfully has failed
substantially to perform Executive’s duties,
(ii)
a conviction, guilty plea or plea of nolo contendere of Executive for any
felony,
(iii)
the willful engaging by Executive in misconduct that is demonstrably and
materially injurious to Company or any Subsidiary, monetarily or
otherwise,
(iv)
a material violation by Executive of the corporate governance guidelines
and code of ethics of Company or any Subsidiary;
(v)
a material violation by Executive of the requirements of the
▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 or other federal or state securities law, rule
or regulation, or
(vi)
a material breach by Executive of any of the restrictive covenants
contained in Section 9.
For
purposes of this definition, no act, or failure to act, on Executive’s
part shall be deemed “willful” unless done, or omitted to be done, by
Executive not in good faith and without reasonable belief that Executive’s
act, or failure to act, was in the best interest of Company and its
Subsidiaries.
“Change in
Control” shall mean, if at any time subsequent to the date of this
Agreement, any of the following events shall have
occurred:
(i)
The acquisition by any individual, entity or “group,” within the meaning
of Section 13(d)(3) of the Exchange Act (a “Person”), of beneficial
ownership (within the meaning of Rule 13d-3 promulgated under the Exchange
Act) of voting securities of Company representing 20% or more of the
combined voting power of the then outstanding voting securities of Company
entitled to vote generally in the election of directors (the “Outstanding
Voting Securities”);
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(ii)
Individuals who, as of the date hereof, constitute the Board (the
“Incumbent Board”) cease for any reason to constitute at least two-thirds
of the Board; provided,
however,
that any individual becoming a director subsequent to the date hereof
whose election, or nomination for election by Company’s stockholders, was
approved by a vote of at least two-thirds of the directors then comprising
the Incumbent Board shall be considered as though such individual were a
member of the Incumbent Board, but excluding, for this purpose, any such
individual whose initial assumption of office occurs as a result of an
actual or threatened election contest with respect to the election or
removal of directors or other actual or threatened solicitation of proxies
or consents by or on behalf of a person other than the Board;
(iii)
The consummation of a reorganization, merger or consolidation or sale or
other disposition of more than 50% of the assets of Company (a “Capital
Transaction”), in each case, unless, following such Capital Transaction ,
all or substantially all of the individuals and entities who were the
beneficial owners, respectively, of the Outstanding Voting Securities
immediately prior to such Capital Transaction beneficially own, directly
or indirectly, at least 60% of the combined voting power of the then
outstanding voting securities entitled to vote generally in the election
of directors, as the case may be, of the corporation resulting from such
Capital Transaction (including, without limitation, a corporation which as
a result of such transaction owns Company or all or substantially all of
Company’s assets either directly or through one or more subsidiaries), in
substantially the same proportions as their ownership, immediately prior
to such Capital Transaction of the Outstanding Voting Securities;
or
(iv)
Approval by the stockholders of Company of a complete liquidation or
dissolution of Company.
“Company”
shall mean Central Vermont Public Service Corporation and any successor to
its business or assets, by operation of law or
otherwise.
“Date of
Termination” shall have the meaning provided for in paragraph (B)
of Section 8 hereof.
“Disability”
shall be deemed the reason for the termination by Company
of Executive’s employment, if, as a result of Executive’s
incapacity due to physical or mental illness, Executive shall have been
absent from the full-time performance of Executive’s duties with Company
or a Subsidiary for a period of six consecutive months, Company shall have
given Executive a Notice of Termination for Disability, and, within 30
business days after the Notice of Termination is given, Executive shall
not have returned to the full-time performance of Executive’s
duties.
“Exchange
Act” shall mean the Securities Exchange Act of 1934, as
amended.
“Executive”
shall mean the individual named in the first paragraph of this
Agreement.
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“Good
Reason” for termination by Executive of Executive’s employment
shall mean the occurrence, without Executive’s express written consent, of
any one of the following:
(i) the
assignment to Executive of any duties inconsistent with Executive’s status
as an executive officer of Company or of a Subsidiary or a substantial
adverse alteration in the nature or status of Executive’s responsibilities
from those in effect immediately prior to the Change in Control, excluding
for this purpose an isolated and inadvertent action by Company or a
Subsidiary not taken in bad faith and which is remedied by Company or
Subsidiary within 10 days after receipt of notice thereof given by the
Executive and further provided that neither mere changes in title and/or
reporting relationship nor reassignment following a Change in Control to a
position that is substantially similar to the position held immediately
prior to the Change in Control shall constitute a substantial adverse
alteration in the nature or status of Executive’s responsibilities from
those in effect immediately prior to the Change in
Control;
(ii)
a reduction by Company in Executive’s annual base salary to any amount
that is less than 90% of Executive’s annual base salary as in effect
immediately prior to the Change in Control;
(iii)
the failure by Company (x) to continue in effect any compensation plan in
which Executive participates immediately prior to the Change in Control
that is material to Executive’s total compensation, including
but not limited to, stock option, restricted stock, long-term and
short-term incentive compensation, bonus, and other plans; unless an
equitable alternative arrangement embodied in an ongoing substitute or
alternative plan has been made, or (y) to continue Executive’s
participation therein (or in a substitute or alternative plan) on a basis
not materially less favorable, both in terms of the amount of compensation
provided and the level of Executive’s participation relative to other
participants, than existed immediately prior to the Change in
Control;
(iv)
the relocation of the principal executive offices of Company to a location
more than 75 miles from the location of such offices immediately prior to
the Change in Control or Company’s requiring Executive to be based
anywhere other than the principal executive offices of Company, or in the
case that Executive was not based at the principal executive offices of
Company immediately prior to the Change in Control, to a location more
than 75 miles from the location where Executive was based immediately
prior to the Change in Control, except for required business travel to an
extent substantially consistent with Executive’s business travel
obligations immediately prior to the Change in Control;
(v)
the termination of Executive’s employment for any reason during the 30-day
period commencing on the first anniversary of the Change in Control if, on
the first anniversary of the Change in Control, a majority of the
Company’s (or if the Company’s shares are not publicly traded, the
Company’s ultimate parent whose shares are publicly traded) board of
directors were not members of the Board immediately prior to the Change in
Control (a “Voluntary Termination
Event”);
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(vi)
the failure by Company to pay to Executive any material portion of
Executive’s current or deferred compensation under any deferred
compensation program of Company, within 5 business days after the date the
compensation is due (taking into account applicable restrictions under
Section 409A) or to pay or reimburse Executive for any expenses incurred
by him for required business travel;
(vii)
the failure by Company to continue to provide Executive with substantially
the same benefits enjoyed by Executive under any of Company’s pension,
profit-sharing, life insurance, medical, health and accident, disability,
or other employee benefit plans in which Executive was participating
immediately prior to the Change in Control; the failure by Company to
continue to provide Executive any material fringe benefit or perquisite
enjoyed by Executive immediately prior to the Change in Control; or the
failure by Company to provide Executive with the number of paid vacation
days to which Executive is entitled in accordance with Company’s normal
vacation policy in effect immediately prior to the Change in Control;
or
(viii)
any failure by Company to comply with and satisfy Section 13(A)
(concerning a successor’s assumption of Company’s obligations hereunder),
other than a failure not occurring in bad faith and which is remedied by
Company promptly after receipt of notice thereof given by
Executive.
For
purposes of this definition of “Good Reason,” the terms “material” and
“materially” and phrase “substantially the same” are intended to be
satisfied where the value of the benefit or benefits that are provided
after a Change in Control equal or exceed 90% of the value of the
comparable benefit or benefits immediately before the Change in
Control.
Gross-up
Amount means the amount determined by multiplying the taxable
benefit by a fraction where the numerator is one and the denominator is
one minus the applicable tax rate. The applicable
tax rate shall be the sum of (i) the highest federal individual income tax
rate (currently 35%), plus (ii) 60% of the highest applicable state
individual income tax rate (if any), in each case for the calendar year in
which Executive receives a taxable benefit.
“Non-Interference/Assistance
Period” shall mean the period commencing with the Termination Date
and ending on the first anniversary of the Termination
Date.
“Notice of
Termination” shall have the meaning stated in paragraph (A) of
Section 8 hereof.
“Payment
Period” shall mean the 3-year period following the date on which a
Change in Control is
consummated.
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“Payment
Trigger” shall mean the occurrence of a Change in Control during
the term of this Agreement coincident with or followed at any time before
the end of the Payment Period by the termination of Executive’s employment
with Company or a Subsidiary in a manner that constitutes a “separation
from service”, as defined in Section 409A, for any reason other than (i)
by Executive without Good Reason, (ii) by Company as a result of the
Disability of Executive or with Cause or, (iii) as a result of the death
of Executive.
“Section
409A” shall mean Code Section 409A and any proposed, temporary or
final regulations, or any other guidance, promulgated with respect to such
Section 409A by the U.S. Department of Treasury or the Internal Revenue
Service.
“Subsidiary”
shall mean any corporation or other entity or enterprise, whether
incorporated or unincorporated, of which at least a majority of the
securities or other interests having by their terms ordinary voting power
to elect a majority of the board of directors or others serving similar
functions with respect to such corporation or other entity or enterprise
is owned by Company or other entity or enterprise of which Company
directly or indirectly owns securities or other interests having all the
voting power.
“Termination
Date” shall have the meaning provided for in paragraph (B) of
Section 8 hereof.
2. Term
of Agreement.
(A) In
General. This Agreement shall become effective on the
date hereof and shall continue in effect for a period of 3 years provided
that if the Executive shall die or a Termination Date shall occur prior to
a Change in Control, this Agreement shall terminate on the earlier of the
date of Executive’s death or the Termination Date.
(B) Extension
of Term. Notwithstanding Section 2(A), the term of the
Agreement shall continue if, prior to the third anniversary of the date of
this Agreement, a Change in Control (i) is eminent, or (ii) has
occurred. In the case of (i) or (ii), the term of the Agreement
shall be extended until either (x) the expiration of the 3-year Payment
Period within which a Payment Trigger does not occur, or (y) if a Payment
Trigger does occur within the 3-year Payment Period, the date on which the
Company has performed all of its obligations and liabilities under
this
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Agreement. For
this purpose, a Change in Control shall be regarded as eminent if it is
reasonably likely to occur within 6 months following the expiration date
provided for the Agreement in Section 2(A). If the anticipated
Change in Control does not occur within such 6-month period, the Agreement
shall expire at the conclusion of the 6-month period unless extended by
mutual agreement of the parties.
3. General
Provisions.
(A) Representations
of Company. Company hereby represents and warrants to
Executive that the execution and delivery of this Agreement and the
performance by Company of the actions contemplated hereby have been duly
authorized by all necessary corporate action on the part of Company; this
Agreement is a legal, valid and legally binding obligation of Company
enforceable in accordance with its terms; and neither the execution or
delivery of this Agreement nor the consummation by Company of the actions
contemplated hereby (i) will violate any provision of the certificate of
incorporation or bylaws (or other charter documents) of Company, (ii) will
violate or be in conflict with any applicable law or any judgment, decree,
injunction or order of any court or governmental agency or authority, or
(iii) will violate or conflict with or constitute a default (or an event
of which, with notice or lapse of time or both, would constitute a
default) under or will result in the termination of, accelerate the
performance required by, or result in the creation of any lien, security
interest, charge or encumbrance upon any of the assets or properties of
Company under, any term or provision of the certificate of incorporation
or bylaws (or other charter documents) of Company or of any contract,
commitment, understanding, arrangement, agreement or restriction of any
kind or character to which Company is a party or by which Company or any
of its properties or assets may be bound or affected.
(B) Conditions
Precedent to Payment. No amount or benefit shall be
payable under this Agreement unless there shall have occurred a Payment
Trigger during the term of this Agreement. In no event shall
payments in accordance with this Agreement be made in respect of more than
one Payment Trigger.
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(C) No
Contract of Employment. This Agreement shall not be
construed as creating an express or implied contract of employment and,
except as otherwise agreed in writing between Executive and Company,
Executive shall not have any right to be retained in the employ of Company
or of a Subsidiary. Notwithstanding the immediately preceding sentence or
any other provision of this Agreement, no purported termination of
Executive’s employment that is not effected in accordance with a Notice of
Termination satisfying paragraph (A) of Section 8 shall be effective for
purposes of this Agreement. Executive’s right, following the occurrence of
a Change in Control, to terminate his employment under this Agreement for
Good Reason shall not be affected by Executive’s Disability or incapacity.
Executive’s continued employment shall not constitute consent to, or a
waiver of rights with respect to, any act or failure to act constituting
Good Reason under this Agreement.
4. Payments
Due Upon a Payment Trigger. Upon the occurrence of a
Payment Trigger during the term of this Agreement, Executive shall receive
payments from the Company, or distributions from plans
maintained by the company, as provided for in this Section 4.
(A) Accrued
Compensation. Company shall pay to Executive the
following amounts in a lump sum within 30 days following the Termination
Date:
(i)
Executive’s annual base salary through the Termination Date to the extent
not theretofore paid;
(ii) the amount of any incentive compensation that
has been allocated or awarded to Executive for a completed fiscal year or
other completed measuring period preceding or coinciding with the
occurrence of the Termination Date under any incentive compensation plan
that is due and payable at such time under the terms of such plan but has
not yet been paid to Executive; and
(iii) any accrued vacation pay to the extent not
theretofore paid.
(B) Long-Term
and Short-Term Incentive Compensation. With regard to
any long-term or short-term incentive compensation plan in which Executive
is a participant, including by way of example and not limitation, the Performance
Share Plan and the Annual Incentive Plan, Company shall pay the pro rata
portion of the award that would have been paid had Executive’s Termination
Date not occurred prior to the completion of the relevant fiscal year or
other measuring period. In each case, the pro rata portion
shall be calculated on a daily basis unless the underlying incentive
compensation arrangement specifies a different method for the pro ration
of the benefit. The amount of the award shall be
calculated on the assumption that performance is at target levels unless
Code
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Section
162(m) requires that it be based on the lesser of actual performance or
target. Payments and/or awards shall be made on the first to
occur of (i) the payment/award date specified in the applicable plan or
(ii) within the 30-day period commencing on the 60th
day following the Termination Date unless a later date is required by (x)
Section 7 (relating to Section 409A) or (y) Code Section
162(m).
(C) Severance
Compensation. Company shall pay to Executive in a lump
sum in cash within the 30-day period commencing on the 60th
day following the Termination Date, or within such later period as
required by Section 7 (relating to Section 409A), an amount equal to the
product of: (i) [2.0
to 2.99] multiplied by, (ii) the sum of (x) the higher of
Executive’s annual base salary in effect immediately prior to the
occurrence of the Change in Control or Executive’s annual base salary in
effect immediately prior to the Payment Trigger, plus (y) the higher of
Executive’s Annual Incentive Target in effect immediately prior to the
occurrence of the Change in Control or Executive’s Annual Incentive Target
in effect immediately prior to the Payment Trigger.
(D) Healthcare. Provided
that Executive fulfills his or her obligations and responsibilities and
satisfies the conditions set forth in Sections 9 and 10, Company shall pay
to Executive in a lump sum in cash within 10 days of the conclusion of the
Non-Interference/Assistance Period, an amount equal to (x) the product of
(i) Executive’s monthly premium for health and dental insurance
continuation coverage for Executive and Executive’s family under the
Consolidated Omnibus Budget Reconciliation Act of 1985 (the “COBRA
Premium”), based on the monthly COBRA Premium for such coverage in effect
on the Termination Date, multiplied by (ii) [24 to
36] months, plus (y) the Gross-Up Amount on the benefit determined
under (x). During the Non-Interference/Assistance Period,
Executive shall be solely responsible for obtaining and maintaining
Executive’s healthcare insurance.
(E) Life
Insurance. Company shall continue to provide Executive
with any life insurance provided immediately before the Termination Date
for the [24 to
36] month period following the Termination
Date.
(F) Outplacement
Services. Company shall, at its sole expense as
incurred, provide Executive with outplacement services from a nationally
recognized outplacement service provider, the scope of which shall be
selected by Executive within parameters established
by
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Company,
provided that (i) the cost to Company shall not exceed $15,000, and (ii)
in no event shall the period during which the outplacement service
expenses are incurred or the period during which the expenses are paid,
extend beyond the end of the calendar year that begins after the calendar
year within which occurs Executive’s Termination Date. Company
shall also calculate and pay to Executive the Gross-up Amount with respect
to the taxable portion of such outplacement services.
(G) SERP
Enhancement. Provided that (i) Executive is a
participant in the Central
Vermont Public Service Corporation Officers’ Supplemental Retirement and
Deferred Compensation Plan, as amended and restated effective
January 1, 2008 (the “SERP’) and otherwise entitled to a benefit
thereunder, and (ii) Executive fulfills his or her obligations and
responsibilities and satisfies the conditions set forth in Sections 9 and
10 of this Agreement, Executive benefit under the SERP shall be
recalculated to be the greater of the amount described in paragraph (x) or
(y) below:
(x) The benefit provided for in Section
3.1(a) of the SERP with such benefit being determined for purposes of
Section 3.1(a)(i) of the SERP as if the Participant had earned [2 to
3] additional years of benefit accruals under the Pension Plan
of Central Vermont Public Service Corporation and Its Subsidiaries,
as in effect from time to time (the “Basic Plan”) and assuming Executive’s
compensation under the Basic Plan for such [2 to
3]-year period is equal to Executive’s compensation for the Plan
Year immediately preceding the Plan Year in which the Change in Control
occurs.
(y) In the case of an Executive who was
a participant of the SERP on December 31, 1997, and was age 50 or older
upon the Change in Control, the benefit described in Section 3.1(b) of the
SERP, without regard to the age and service requirements of Section III(a)
of Appendix A thereof.
(H) Other
Vested Benefits. To the extent not theretofore paid or
provided, Company shall pay to Executive all vested benefits or other
amounts that Executive is otherwise entitled to receive under any plan,
policy, practice or program of or any contract or agreement with Company
or any of its Subsidiaries at or subsequent to the Termination Date in
accordance with such plan, policy, practice or program or contract or
agreement except as explicitly modified
by
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this
Agreement; provided,
however, if
Executive receives the payments and benefits in accordance with paragraphs
(B), (C), (D),(E), (F) and (G) of this Section 4, Executive shall not, in
order to avoid any duplication of benefit, be entitled to any severance
pay or benefits under any severance plan, program or policy of Company or
its Subsidiaries, unless otherwise specifically provided therein in a
specific reference to this Agreement.
5. Release. Notwithstanding
anything contained herein to the contrary, Company shall only be obligated
to pay or provide a benefit under paragraphs (B), (C), (D), (E), (F)and
(G) of Section 4 and Section 6 if: (i) within the 50-day period after the
Termination Date Executive first executes a release substantially in the
form attached hereto as Exhibit A ; and (ii) Executive does not
revoke the release during the 7-day revocation period prescribed by the
Age Discrimination in Employment Act of 1967, as amended, or any similar
revocation period, if applicable.
6. Gross-Up
Payments.
(A) In the event that this Agreement
shall become operative and it shall be determined (as hereafter provided)
that any payment (other than the Gross-Up payments provided for in this
Section 6) or distribution by the Company or any of its subsidiaries to or
for the benefit of Executive, whether paid or payable or distributed or
distributable pursuant to the terms of this Agreement or otherwise (each
of the foregoing a “Payment”), would be subject to the excise tax imposed
by Code Section 4999 by reason of being considered “contingent on a change
in ownership or control” of the Company, within the meaning of Code
Section 280G or to any similar tax imposed by state or local law, or any
interest or penalties with respect to such tax (such tax or taxes,
together with any such interest and penalties, being hereafter
collectively referred to as the “Excise Tax”), Executive shall be entitled
to receive an additional payment or payments from the Company
(collectively, a “Gross-Up Payment”). The Gross-Up Payment
shall be in an amount such that, after payment by Executive of all taxes
(including any interest or penalties imposed with respect to such taxes),
including any Excise Tax and any income tax imposed upon the Gross-Up
Payment, Executive shall retain an amount of Gross-Up Payment equal to the
Excise Tax imposed upon the
Payment.
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(B) Subject to the provisions of
Section 6(F), all determinations required to be made under this Section 6,
including whether an Excise Tax is payable by Executive and the amount of
such Excise Tax and whether a Gross-Up Payment is required to be paid by
the Company to Executive and the amount of such Gross-Up Payment, if any,
shall be made by the Company’s external accounting firm, Deloitte Touche
or any successor entity or by such other nationally recognized accounting
firm (the “Accounting Firm”) selected by Executive with the consent of the
Company, which consent will not be unreasonably
withheld. Executive shall direct the Accounting Firm to submit
its determination and detailed supporting calculations to both the Company
and Executive within 45 calendar days after the occurrence of a Payment
Trigger, and any such other time or times as may be requested by the
Company or Executive. If the Accounting Firm determines that
any Excise Tax is payable by Executive, the Company shall pay the required
Gross-Up Payment to Executive within 15 business days after receipt of
such determination and calculations with respect to any Payment to
Executive. If the Accounting Firm determines that no Excise Tax
is payable by Executive, it shall, at the same time as it makes such
determination, furnish the Company and Executive an opinion that Executive
has substantial authority not to report any Excise Tax on his federal,
state or local income or other tax return. As a result of the
uncertainty in the application of Code Section 4999 and the possibility of
similar uncertainty regarding applicable state or local tax law at the
time of any determination by the Accounting Firm hereunder, it is possible
that a Gross-Up Payment which will not have been made by the Company
should have been made (an “Underpayment’), consistent with the
calculations required to be made hereunder. In the event that
the Company exhausts or fails to pursue its remedies pursuant to Section
6(F) and Executive thereafter is required to make a payment of any Excise
Tax, Executive shall direct the Accounting Firm to determine the amount of
the Underpayment that has occurred and to submit its determination and
detailed supporting calculations to both the Company and Executive as
promptly as possible. Any such Underpayment shall be promptly
paid by the Company to, or for the benefit of, Executive within 15
business days after the receipt of such determination and
calculations.
(C) The Company and Executive shall
each provide the Accounting Firm access to and copies of any books,
records and documents in the possession of the Company or Executive, as
the case may be, reasonably requested by the Accounting Firm, and
otherwise cooperate with the Accounting Firm in connection with the
preparation and issuance of the determinations
and
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calculations
contemplated by Section 6(B). Any determination by the
Accounting Firm as to the amount of the Gross-Up Payment shall be binding
upon the Company and Executive.
(D) The federal, state and local income
or other tax returns filed by Executive shall be prepared and filed on a
consistent basis with the determination of the Accounting Firm with
respect to the Excise Tax payable by Executive. Executive shall
make proper payment of the amount of any Excise Payment, and at the
request of the Company, provide to the Company true and correct copies
(with any amendments) of his federal income tax return as filed with the
Internal Revenue Service and corresponding state and local tax returns, if
relevant, as filed with the applicable taxing authority, and such other
documents reasonably requested by the Company, evidencing such
payment. If prior to the filing of Executive’s federal income
tax return, or corresponding state or local tax return, if relevant, the
Accounting Firm determines that the amount of the Gross-Up Payment should
be reduced, Executive shall within 15 business days pay to the Company the
amount of such reduction.
(E) The fees and expenses of the
Accounting Firm for its services in connection with the determinations and
calculations contemplated by Section 6(B) shall be borne by the Company.
If such fees and expenses are initially paid by Executive, the Company
shall reimburse Executive the full amount of such fees and expenses within
15 business days after receipt from Executive of a statement thereof and
reasonable evidence of his payment thereof.
(F) Executive shall notify the Company
in writing of any claim, by the Internal Revenue Service or any other
taxing authority that, if successful, would require the payment by the
Company of a Gross-Up Payment or any additional Gross-Up Payment. Such
notification shall be given as promptly as practicable but no later than
l0 business days after Executive actually receives notice of such claim
and Executive shall further apprise the Company of the nature of such
claim and the date on which such claim is requested to be paid (in each
case, to the extent known by Executive). Executive shall not pay such
claim prior to the earlier of (x) the expiration of the 30-calendar-day
period following the date on which he gives such notice to the Company and
(y) the date that any payment or amount with respect to such claim is due.
If the Company notifies Executive in writing prior to the expiration of
such period that it desires to contest such claim, Executive
shall:
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(i)
provide the Company with any written records or documents in his
possession relating to such claim reasonably requested by the
Company;
(ii) take such action in connection with
contesting such claim as the Company shall reasonably request in writing
from time to time, including without limitation accepting legal
representation with respect to such claim by an attorney competent in
respect of the subject matter and reasonably selected by the
Company;
(iii) cooperate with the Company in good faith in
order to effectively contest such claim; and
(iv) permit the Company to participate in any
proceedings relating to such claim; provided,
however,
that the Company shall bear and pay directly all costs and expenses
(including interest and penalties) incurred in connection with such
contest and shall indemnify and hold harmless Executive, on an after-tax
basis, for and against any Excise Tax or income tax, including interest
and penalties with respect thereto, imposed as a result of such contest
and payment of costs and expenses. Without limiting the foregoing
provisions of this Section 6(F), the Company shall control all proceedings
taken in connection with the contest of any claim contemplated by this
Section 6(F) and, at its sole option, may pursue or forego any and all
administrative appeals, proceedings, hearings and conferences with the
taxing authority in respect of such claim (provided,
however,
that Executive may participate therein at his own cost and expense) and
may, at its option, either direct Executive to pay the tax claimed and ▇▇▇
for a refund or contest the claim in any permissible manner, and Executive
agrees to prosecute such contest to a determination before any
administrative tribunal, in a court of initial jurisdiction and in one or
more appellate courts, as the Company shall determine; provided,
however,
that if the Company directs Executive to pay the tax claimed and ▇▇▇ for a
refund, the Company shall advance the amount of such payment to Executive
on an interest-free basis and shall indemnify and hold Executive harmless,
on an after-tax basis, from any Excise Tax or income or other tax,
including interest or penalties with respect thereto, imposed with respect
to such advance; and provided
further,
however,
that any extension of the statute of limitations relating to payment of
taxes for the taxable year of Executive with respect to which the
contested amount is claimed to be due is limited solely to such contested
amount. Furthermore, the Company's control of any such contested claim
shall be limited to issues with respect to which a Gross-Up Payment would
be payable hereunder and Executive shall be entitled to settle or contest,
as the case may be, any other issue raised by the Internal Revenue Service
or any other taxing authority.
(G) If, after the receipt by Executive
of an amount advanced by the Company pursuant to Section 6(F), Executive
receives any refund with respect to such claim, Executive shall (subject
to the Company’s complying with the requirements of Section 6(F)) pay to
the Company the amount of such refund (together with any interest paid or
credited thereon after any taxes applicable thereto) within 15 business
days of Executive’s receipt of such refund. If, after the
receipt by Executive of an amount advanced by the Company pursuant to
Section 6(F), a
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determination
is made that Executive shall not be entitled to any refund with respect to
such claim and the Company does not notify Executive in writing of its
intent to contest such denial or refund prior to the expiration of 30
calendar days after such determination, then such advance shall be
forgiven and shall not be required to be repaid and the amount of any such
advance shall offset, to the extent thereof, the amount of Gross-Up
Payment required to be paid by the Company to Executive pursuant to this
Section 6.
(H) Notwithstanding any provision of
this Agreement to the contrary, if (i) but for this sentence, the Company
would be obligated to make a Gross-Up Payment to Executive, and (ii)
either (a) the aggregate "present value" of the "parachute payments" to be
paid or provided to Executive under this Agreement or otherwise does not
exceed 1.10 multiplied by three times Executive's "base amount," or (b)
Executive's termination of employment constitutes a Voluntary Termination
Event, then the payments and benefits to be paid or provided under this
Agreement will be reduced to the minimum extent necessary (but in no event
to less than zero) so that no portion of any payment or benefit to
Executive, as so reduced, constitutes an "excess parachute payment." For
purposes of this Section 6(H), the terms "excess parachute payment,"
"present value," "parachute payment," and "base amount" will have the
meanings assigned to them by Section 280G of the Code. The determination
of whether any reduction in such payments or benefits to be provided under
this Agreement is required pursuant to the preceding sentence will be made
at the expense of the Company, if requested by Executive or the Company,
by the Accounting Firm. The fact that Executive's right to payments or
benefits may be reduced by reason of the limitations contained in this
Section 6(H) will not of itself limit or otherwise affect any other rights
of Executive other than pursuant to this Agreement. In the event that any
payment or benefit intended to be provided under this Agreement or
otherwise is required to be reduced pursuant to this Section 6(H),
Executive will be entitled to designate the payments and/or benefits to be
so reduced in order to give effect to this Section 6(H). The
Company will provide Executive with all information reasonably requested
by Executive to permit Executive to make such designation. In the event
that Executive fails to make such designation within l0 business days of
the Termination Date, the Company may effect such reduction in any manner
it deems appropriate.
7. Compliance
with Section 409A.
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(A) Specified
Employee. Notwithstanding anything contained in this
Agreement to the contrary, if Executive is a “specified employee,” within
the meaning of Section 409A as determined under Company’s policy for
determining specified employees on the Termination Date, all payments,
benefits or reimbursements paid or provided under this Agreement that
constitute a “deferral of compensation” within the meaning of Section 409A
of the Code, that are provided as a result of a Separation from Service
and that would otherwise be paid or provided during the first 6 months
following such Termination Date shall be accumulated through and paid or
provided (together with interest at the applicable Federal short-term
rate, compounded semi-annually, in effect under Code Section 1274(d) as of
the Termination Date) within 30 calendar days after the first business day
following the 6 month anniversary of such Termination Date (or, if
Executive dies during such 6-month period, within 10 calendar days after
Executive’s death).
(B) Compliance
with Section 409A. It is intended that the payments and
benefits provided under this Agreement shall either be exempt from the
application of, or comply with, the requirements of Section 409A. This
Agreement shall be construed, administered, and governed in a manner that
effects such intent, and Company shall not take any action that would be
inconsistent with such intent. Without limiting the foregoing, the
payments and benefits provided under this Agreement may not be deferred,
accelerated, extended, paid out or modified in a manner that would result
in the imposition of an additional tax under Section 409A upon Executive.
Although Company shall use its best efforts to avoid the imposition of
taxation, interest and penalties under Section 409A, the tax treatment of
the benefits provided under this Agreement is not warranted or guaranteed.
Neither Company, its Subsidiaries nor their respective directors,
officers, employees or advisors shall be held liable for any taxes,
interest, penalties or other monetary amounts owed by Executive or other
taxpayer as a result of the Agreement.
8. Termination
Procedures.
(A) Notice. On
or after the occurrence of a Change in Control, any purported termination
of Executive’s employment (other than by reason of death) shall be
communicated by written Notice of Termination from one party hereto to the
other party hereto in
accordance
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with
Section 14 hereof. For purposes of this Agreement, a “Notice of
Termination” shall mean a written notice that indicates the specific
termination provision in this Agreement relied upon, and, if applicable,
the notice shall set forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of Executive’s
employment under the provision so indicated. Further, a Notice
of Termination for Cause shall include a copy of a resolution duly adopted
by the affirmative vote of not less than a majority of the entire
membership of the Board at a meeting of the Board that was called and held
for the purpose of considering the termination (after reasonable notice to
Executive and an opportunity for Executive, together with his counsel, to
be heard by the members of the Board) finding that, in the informed,
reasonable, good faith judgment of the Board, Executive’s conduct
satisfies one or more of the requirements set forth in the definition of
Cause in Section 1, and specifying the particulars thereof in
detail.
(B) Termination
Date. “Termination Date” under this Agreement shall mean
the effective date of Executive’s employment with Company or its
affiliates that constitutes a “separation from service” within the meaning
of Section 409A. Except as provided in the next sentence, the
Termination Date shall be determined as follows: (i) if Executive’s
employment is terminated for Disability, 30 business days after Notice of
Termination is given (provided that Executive shall not have returned to
the full-time performance of Executive’s duties during that 20
business-day period) and (ii) if Executive’s employment is terminated for
any other reason, the date specified in the Notice of Termination, which,
in the case of a termination by Company, shall not be less than 10
business days except in the case of a termination for Cause, and, in the
case of a termination by Executive, shall not be less than 10 business
days nor more than 20 business days, respectively, after the date such
Notice of Termination is given. Company and Executive shall
take all steps necessary (including with regard to any post-termination
services by Executive) to ensure that any termination described in this
Section 8(B) constitutes a “separation from service” within the meaning of
Section 409A and that the date on which such separation from service takes
place is the “Termination Date.”
9. Restrictive
Covenants.
(A) Non-Disclosure. Executive
acknowledges that in the course of Executive’s employment with Company and
any Subsidiary Executive has had and will have access
to
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confidential
information and trade secrets proprietary to Company and its Subsidiaries,
including, without limitation, information and knowledge pertaining to
services provided, products, innovations, designs, ideas, plans, trade
secrets, proprietary information, transmission and distribution systems
and methods, revenue and profit figures, customer lists, contracts,
studies, relationships between the Company and its Affiliates and/or
Subsidiaries and other others who have business dealings with the Company
and its Affiliates and/or Subsidiaries ("Confidential
Information"). Executive further acknowledges that the
Confidential Information is proprietary to Company and its Subsidiaries,
that the unauthorized disclosure of any of the Confidential Information to
any person or entity will result in immediate and irreparable competitive
injury to Company and its Subsidiaries, and that such injury cannot
adequately be remedied by an award of monetary damages. Accordingly,
Executive shall not at any time disclose any Confidential Information to
any person or entity who is not properly authorized by Company or its
Subsidiaries to receive the information without the prior written consent
of the Board (which consent may be withheld for any reason or no reason)
unless and except to the extent that such disclosure is required by any
subpoena or other legal process (in which event Executive will give the
Board prompt written notice of such subpoena or other legal process and
will cooperate with the Company in order to permit Company and its
Subsidiaries to seek appropriate protective orders). Executive
shall not use any Confidential Information for Executive’s own account
without the prior written consent of the Board (which consent may be
withheld for any reason or no reason).
(B) Non-Compete. Executive
shall not during Executive’s employment with Company or any Subsidiary and
thereafter until the expiration of the Non-Interference/Assistance Period,
in any manner, directly or indirectly, through any person, firm or
corporation, alone or as a member of a partnership or as an officer,
director, shareholder, investor or employee of or in any other corporation
or enterprise or otherwise, (i) engage in or be engaged in, or assist any
other person, firm, corporation or enterprise in engaging or being engaged
in, any business then actively being conducted by Company or its
Subsidiaries, or any business that each of Company or its Subsidiaries has
engaged in during the Non-Interference/Assistance Period within Vermont,
(ii) engage in or be engaged in, or assist the Vermont Public Service
Board, Connecticut Department of Public Utility, Vermont Department of
Public Service or successor
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department
or agency in the regulation or oversight of the Company or its
Subsidiaries, or (iii) engage in or be engaged in, or assist any active
customer or supplier of Company or its Subsidiaries in the
development, negotiation, or implementation of a power supply or power
purchase contract or other agreement with Company or its Subsidiaries. .
Nothing in this Section shall prohibit Executive from being: (x) a
shareholder in a mutual fund or a diversified investment company or (y) a
passive owner of not more than 5% of the outstanding equity securities of
any class of a corporation or other entity which is publicly traded, so
long as Executive has no active participation in the business of such
corporation or other entity. For the purpose of clarification, the
business in which Company is actively engaged includes the purchase,
production, transmission, distribution, and the retail sale of electricity
principally in Vermont; however, Company also sells excess power in the
wholesale markets administered by ISO New England and to other New England
customers.
(C) Non-Interference. Executive
shall not during his employment with Company or its Subsidiaries and
thereafter until the expiration of the Non-Interference/Assistance Period
employ, or assist any person or entity in employing, any employee of
Company or its Subsidiaries. Executive shall not during his employment
with Company or its Subsidiaries and thereafter until the expiration of
the Non-Interference/Assistance Period solicit, or assist any person or
entity to solicit, any employee of any member of Company or its
Subsidiaries to leave the employment of Company or its Subsidiaries or to
become employed by any other entity.
(D) Non-Disparagement. During
the term of employment and thereafter until the expiration of the
Non-Interference/Assistance Period, Executive shall not, in any
communications with the press or other media or any customer, client or
supplier of Company, or any Subsidiary, criticize, ridicule or make any
statement which disparages or is derogatory of Company or any Subsidiary,
of any successor or assignee thereto or of their respective directors or
senior officers. No director or senior officer of company will,
during the same time period, criticize, ridicule or make any statement
which disparages or is derogatory of Executive.
(E) Change
in Scope. If a court holds that the restrictions
provided for in this Section 9 are unreasonable under circumstances then
existing, the parties hereto agree that the maximum period, scope or
geographical area reasonable under such circumstances shall be substituted
for
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the
stated period, scope or area and that the court shall be allowed to revise
the restrictions contained herein to cover the maximum period, scope and
area permitted by law.
(F) Acknowledgment
by Executive. Executive acknowledges that the covenants
contained in this Section 9 are a principal inducement for the willingness
of Company to enter into this Agreement and make the payments and provide
the benefits to Executive under this Agreement and that Company and
Executive intend the covenants to be binding upon and enforceable against
Executive in accordance with their terms, notwithstanding any common or
statutory law to the contrary. Executive agrees that the obligations of
Company under this Agreement (specifically including, but not limited to,
the obligation to make any payment or provide any benefit under paragraphs
(B), (C), (D), (E)(F) and (G) of Section 4 or Section 6) constitute
sufficient consideration for the covenants contained in this Section 9.
Company and Executive further agree that the restrictions
contained in this Section 9 are reasonable in period, scope and
geographical area and are necessary to protect the legitimate business
interests and Confidential Information of Company and its Subsidiaries.
Executive agrees that he will notify Company and its Subsidiaries in
writing if he has, or reasonably should have, any questions regarding the
applicability of this Section 9. Because Executive’s services are unique
and because Executive has access to Confidential Information, the parties
agree that Company and its Subsidiaries would be damaged irreparably in
the event any of the provisions of this Section 9 were not performed in
accordance with their specific terms or were otherwise breached and that
money damages would be an inadequate remedy for any such non-performance
or breach. In the event that Executive breaches or threatens to breach any
such provision of this Section 9, the parties agree that Company and its
Subsidiaries shall be entitled to seek any and all equitable and legal
relief provided by law, specifically including immediate and permanent
injunctive relief to prevent any breach or threatened breach of any of
such provisions and to enforce such provisions specifically (without
posting a bond or other security). Executive hereby waives any claim that
Company or its Subsidiaries have an adequate remedy at law. The parties
agree that the foregoing relief shall not be construed to limit or
otherwise restrict the ability of Company and its Subsidiaries to pursue
any other remedy provided by law, including the recovery of any actual,
compensatory or punitive
damages.
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10. Consulting. Executive
agrees to provide such consulting services as may reasonably be requested
by the Company during the Non-Interference/Assistance Period.
11. No
Offsets or Mitigation/Withholding. Company’s obligation
to make the payments provided for in Sections 4, 6 or 12 of this Agreement
and otherwise to perform its obligations hereunder shall be absolute and
unconditional and shall not be affected by any set-off, counterclaim,
recoupment, defense or other claim, right or action which Company or any
of its Subsidiaries may have against Executive or others. In no event
shall Executive be obligated to seek other employment or take any other
action by way of mitigation of the amounts payable to Executive under any
of the provisions of this Agreement and such amounts shall not be reduced
whether or not Executive obtains other employment. All payments
to be made by Company or a Subsidiary under this Agreement shall be
reduced by any tax or other amounts required to be withheld under
applicable law.
12. Disputes.
(A) Arbitration. Any
dispute or controversy arising out of or in connection with this Agreement
shall, upon a written notice from Executive to Company either before suit
thereupon is filed or within 20 business days thereafter, be settled
exclusively by binding arbitration before an arbitrator mutually
acceptable to the parties in accordance with the Commercial Arbitration
Rules of the American Arbitration Association. The arbitration proceeding
shall be conducted at a location that is within 50 miles of the location
of Executive’s principal place of employment on the Termination Date.
Judgment may be entered on the arbitrator’s award in any court having
jurisdiction. Notwithstanding the foregoing, Company shall not
be required to seek or participate in arbitration regarding any breach or
threatened breach by Executive of his obligations in Section 9, but may
pursue its remedies for such breach in a court of competent jurisdiction
in accordance with Section 12(C) below.
(B) Legal
Fees and Expenses. In the event that Executive prevails
in an arbitration commenced as provided for in this Section 12, Company
shall pay or reimburse Executive for reasonable legal fees and expenses
incurred by Executive and attributable to such
arbitration.
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(C) Other
Legal Action. Any legal action concerning this
Agreement, other than an arbitration described in Section 12(A), whether
instituted by Company or Executive, shall be brought and resolved only in
the United States Federal District Court of
Vermont. Company and Executive hereby irrevocably
consent and submit to and shall take any action necessary to be subject to
the personal jurisdiction of that court and hereby irrevocably agree that
all claims in respect of the action shall be instituted, heard, and
determined in that court. Company and Executive each agree that such court
is a convenient forum, and hereby irrevocably waive, to the fullest extent
possible, the defense of an inconvenient forum to the maintenance of the
action. Any final judgment in the action may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by
law.
13. Successors;
Binding Agreement.
(A) In addition to any obligations
imposed by law upon any successor to Company, Company shall require any
successor (whether direct or indirect, by purchase, merger, consolidation,
or otherwise) to all or substantially all of the business or assets of
Company expressly to assume and agree to perform this Agreement in the
same manner and to the same extent that Company would be required to
perform it if no such succession had taken place. The provisions of this
Section 13 shall continue to apply to each subsequent employer of
Executive bound by this Agreement in the event of any merger,
consolidation, or transfer of all or substantially all of the business or
assets of that subsequent employer.
(B) This Agreement shall inure to the
benefit of and be enforceable by Executive’s personal or legal
representatives, executors, administrators, successors, heirs,
distributees, devisees, and legatees. If Executive shall die while any
amount would be payable to Executive hereunder (other than amounts which,
by their terms, terminate upon the death of Executive) if Executive had
continued to live, the amount, unless otherwise provided herein, shall be
paid in accordance with the terms of this Agreement to the executors,
personal representatives, or administrators of Executive’s
estate.
14. Notices. For
the purpose of this Agreement, notices and all other communications
provided for in the Agreement shall be in writing and shall be deemed to
have been duly given when delivered or mailed by United States registered
mail, return receipt requested,
postage
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prepaid,
addressed to the respective addresses set forth below, or to such other
address as either party may have furnished to the other in writing in
accordance herewith, except that notice of change of address shall be
effective only upon actual receipt:
To
Company:
▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: [______Officer]
To
Executive:
_______________________________
15. Miscellaneous. Except
as otherwise provided in Section 6, no provision of this Agreement may be
modified, waived, or discharged unless such waiver, modification, or
discharge is agreed to in writing and signed by Executive and an officer
of Company specifically designated by the Board. No waiver by either party
hereto at any time of any breach by the other party hereto of, or
compliance with, any condition or provision of this Agreement to be
performed by such other party shall be deemed a waiver of similar or
dissimilar provisions or conditions at the same or at any prior or
subsequent time. The validity, interpretation, construction, and
performance of this Agreement shall be governed by the laws of the State
of Delaware. All references to sections of the Exchange Act or the Code
shall be deemed also to refer to any successor provisions to such
sections. Any payments provided for hereunder shall be paid net of any
applicable withholding required under federal, state, or local law and any
additional withholding to which Executive has agreed.
16. Validity. The
invalidity or unenforceability of any provision of this Agreement shall
not affect the validity or enforceability of any other provision of this
Agreement, which shall remain in full force and effect.
17. Counterparts. This
Agreement may be executed in several counterparts, each of which shall be
deemed to be an original but all of which together will constitute one and
the same instrument.
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18. Entire
Agreement. This Agreement constitutes the entire
agreement between the parties relating to a the subject matter hereof,
superseding all prior oral or written communications, agreements,
contracts and the like between the
parties.
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ACKNOWLEDGEMENT OF
ARBITRATION
The
parties to this Agreement acknowledge the arbitration provision of this
Agreement, and acknowledge that no lawsuit may be brought by either party
concerning any dispute that may arise which is covered by the arbitration
provision, unless it involves a question of constitutional or civil
rights, and that such dispute shall be submitted to arbitration in
accordance with the arbitration provision as set forth in Section
12(A).
DATED at Rutland, Vermont this ____ day of
___________ __________.
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IN
PRESENCE OF:
________________________
Witness
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______________________________
Executive
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________________________
Witness
|
CENTRAL
VERMONT PUBLIC
SERVICE
CORPORATION
By ____________________________
▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Chairperson
of the Board
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