Exhibit 10.40
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") entered into as of August
21, 1996, by and between Northeast Utilities Service Company, a Connecticut
corporation (the "Company"), with its principal office in Berlin,
Connecticut, and Xxxxx X. Xxxxxx, a resident of Columbia, South Carolina
("Executive").
WHEREAS, Executive and the Company desire to enter into an
agreement superseding all prior employment agreements and providing for
Executive's employment as a senior level executive serving as the President
and Chief Executive Officer of Northeast Nuclear Energy Company and
Northeast Utilities' other nuclear subsidiaries and affiliates and to reflect
Executive's contribution to the Company's business in his executive
capacities and to provide for Executive's continued employment by the
Company, upon the terms and conditions set forth herein:
NOW, THEREFORE, the parties hereto, intending to be legally bound,
hereby agree as follows:
1. Employment. The Company hereby agrees to employ Executive as
President and Chief Executive Officer of Northeast Nuclear Energy Company
and Northeast Utilities' other nuclear subsidiaries and affiliates commencing
as of September 3, 1996, and continue the employment of Executive throughout
the Employment Term, as hereinafter defined, and Executive hereby accepts
such employment and agrees to perform his duties and responsibilities, in
accordance with the terms, conditions and provisions hereinafter set forth.
This Agreement terminates and supersedes all prior employment agreements
between the Company and Executive. Certain provisions of this Agreement are
effective only on and after February 25, 1997 (the "Revision Date").
1.1. Employment Term. The term of Executive's employment under this
Agreement shall commence as of September 3, 1996 (the "Effective Date") and
shall continue until August 31, 1999, unless sooner terminated in accordance
with Section 5 or Section 6 hereof, and shall automatically renew for periods
of one year unless one party gives written notice to the other, at least six
months prior to August 31, 1999 or at least six months prior to the end of
any one-year renewal period, that the Agreement shall not be further
extended. The period commencing as of the Effective Date and ending on the
date on which the term of Executive's employment under the Agreement shall
terminate is hereinafter referred to as the "Employment Term".
1.2. Duties and Responsibilities. Executive shall serve in such senior
positions as directed by the Company's Board of Directors (the "Board") or
the Board of Trustees (the "Trustees") of Northeast Utilities ("NU") that
provide Executive with duties and compensation that are substantially
equivalent to President and Chief Executive Officer of Northeast Nuclear
Energy Company and Northeast Utilities' other nuclear subsidiaries and
affiliates in terms of duties and responsibilities. During the Employment
Term, Executive shall perform all duties and accept all responsibilities
incident to such positions as may be assigned to him by the Board.
1.3. Extent of Service. During the Employment Term, Executive agrees to
use his best efforts to carry out his duties and responsibilities under
Section 1.2 hereof and, consistent with the other provisions of this
Agreement, to devote substantially all his business time, attention and
energy thereto. Except as provided in Section 3 hereof, the foregoing shall
not be construed as preventing Executive from making minority investments in
other businesses or enterprises provided that Executive agrees not to become
engaged in any other business activity which, in the reasonable judgment of
the Board, is likely to interfere with his ability to discharge his duties
and responsibilities to the Company.
1.4. Base Salary and Signing Bonus. For all the services rendered by
Executive hereunder, the Company shall pay Executive a base salary ("Base
Salary") of $500,000 per annum, commencing on the Effective Date, payable in
installments at such times as the Company customarily pays its other senior
level executives (but in any event no less often than monthly). Executive's
Base Salary shall be reviewed annually for appropriate adjustment (but shall
not be reduced below that in effect on the Effective Date without Executive's
written consent) by the Trustees pursuant to its normal performance review
policies for senior level executives. The Company shall also pay Executive a
signing bonus of $400,000 on or about September 3, 1996.
1.5. Retirement and Benefit Coverages. During the Employment Term,
Executive shall be entitled to participate in all (a) employee savings plans
("Retirement Plans") and (b) welfare benefit plans and programs ("Benefit
Coverages"), in each case made available to the Company's senior level
executives as a group or to its employees generally, as such Retirement Plans
or Benefit Coverages may be in effect from time to time. In addition, the
Company shall provide Executive with a special retirement benefit as
hereinafter described (the "Special Retirement Benefit"). The Special
Retirement Benefit shall be substantially similar in design to Executive's
arrangement with South Carolina Electric & Gas (his employer immediately
previous to the Company), except that (i) Executive will not be required to
remain employed by the Company until age 65 in order to receive the
equivalent of South Carolina Electric & Gas' Key Employee Retention Program
and (ii) if Executive retires at any time after three years but less than
five years of service with the Company, he will be deemed to have five years
of service solely for purposes of the Special Retirement Benefit and will be
entitled to receive that Benefit based on five years of service. The
Company's Human Resources Department has provided and will continue to
provide Executive from time to time with a statement of the projected form,
amount and time of payment of such benefit, and such statement shall, in each
case, constitute the definitive statement of such benefit, provided that no
such statement shall reduce in amount, restrict in form, or delay in time the
payment of such Benefit as compared to the prior statement without
Executive's written consent. In addition to the above-described benefit, if
Executive retires at any time after three years of service with the Company
he shall also receive a lump sum payment of $500,000. The Special Retirement
Benefit shall also include eligibility for Executive and his spouse to
participate in the Company's retiree health plan, but the amount of cost
sharing under that plan shall be at the maximum level paid by any retiree who
qualifies for participation in such plan unless Executive, by reason of his
actual years of service, qualifies for a more favorable cost sharing
arrangement under the terms of such plan. The aggregate of the benefits
described in the preceding four sentences shall be referred to as the
"Special Retirement Benefit." For the purposes of this Agreement, a "year of
service" shall mean each successive 365 day period beginning September 1,
1996 during which Executive continues to be actively employed by the Company.
1.6. Reimbursement of Expenses; Vacation. Executive shall be provided
with reimbursement of expenses related to his employment by the Company on a
basis no less favorable than that which may be authorized from time to time
for senior level executives as a group, and shall be entitled to five weeks
of vacation and holidays in accordance with the Company's normal personnel
policies for senior level executives.
1.7. Short-Term Incentive Compensation. Executive shall be entitled
to a special short-term incentive arrangement through December 31, 1999 (the
"Special Incentive Plan"). Under the Special Incentive Plan, Executive and
the Chief Executive Officer of NU shall agree annually on certain individual
performance goals to be satisfied for the next "performance period" by
Executive and the incentive to be paid for Executive's performance of those
goals. Executive's target award shall be 50% of Base Salary and his maximum
award shall be 100% of Base Salary. The performance periods shall be
September 1, 1996 through August 31, 1997, September 1, 1997 through August
31, 1998 and September 1, 1998 though December 31, 1999. If the Employment
Term has not previously terminated, beginning on January 1, 2000, Executive
shall be entitled to participate in any short-term incentive compensation
programs established by the Company for its senior level executives generally
depending upon achievement of certain annual individual or business
performance objectives specified and approved by the Trustees (or a Committee
thereof) in its sole discretion; provided, however, that Executive's "target
opportunity" and "maximum opportunity" under any such program shall be at
least at the "President level" as in effect under the Company's then
short-term incentive arrangement(s). Executive's short-term incentive
compensation, either in shares of NU or cash, as applicable from time to
time, shall be paid to him, subject to the Board's or the Trustees'
reasonable discretion, not later than such payments are made to the Company's
senior level executives generally.
1.8. Long-Term Incentive Compensation. On and after the Effective Date
and until December 31, 1998, Executive shall participate in the NU Stock
Price Recovery Plan, in accordance with the terms adopted by the Trustees and
NU's Organization, Compensation and Board Affairs Committee on December 21,
1996. If the Employment Term has not previously terminated, beginning on
January 1, 1999, Executive shall also be entitled to participate in any
long-term incentive compensation programs established by the Company for its
senior level executives generally depending upon achievement of certain
business performance objectives specified and approved by the Trustees (or a
Committee thereof) in its sole discretion; provided, however, that
Executive's "target opportunity" and "maximum opportunity" under any such
program shall be at least at the "President level" as in effect under the
Company's then long-term incentive arrangement(s). Executive's long-term
incentive compensation, either in shares of NU or cash, as applicable from
time to time, shall be paid to him, subject to the Board's or the Trustee's
reasonable discretion, not later than such payments are made to the Company's
senior level executives generally. In addition, the Company will grant
Executive $500,000 of restricted NU Common Shares on September 3, 1996. The
restrictions will lapse if Executive is actively employed by the Company when
Millstone Station is removed from the Nuclear Regulatory Commission's
"Watchlist," provided that (i) such removal occurs within three years after
September 3, 1996 and (ii) Seabrook's current level of SALP and INPO ratings
have not materially changed, as determined by the Trustees, in its sole and
reasonable discretion; and, provided, further that in the event Executive is
transferred to a new position with the Company or an Affiliate, as defined in
Section 6.1(a), the restrictions shall lapse immediately.
2. Confidential Information. Executive recognizes and acknowledges
that by reason of his employment by and service to the Company before, during
and, if applicable, after the Employment Term he has had and will continue to
have access to certain confidential and proprietary information relating to
the business of the Company, which may include, but is not limited to, trade
secrets, trade "know-how", customer information, supplier information, cost
and pricing information, marketing and sales techniques, strategies and
programs, computer programs and software and financial information
(collectively referred to as "Confidential Information"). Executive
acknowledges that such Confidential Information is a valuable and unique
asset of the Company and Executive covenants that he will not, unless
expressly authorized in writing by the Board, at any time during the course
of his employment use any Confidential Information or divulge or disclose any
Confidential Information to any person, firm or corporation except in
connection with the performance of his duties for the Company and in a manner
consistent with the Company's policies regarding Confidential Information.
Executive also covenants that at any time after the termination of such
employment, directly or indirectly, he will not use any Confidential
Information or divulge or disclose any Confidential Information to any
person, firm or corporation, unless such information is in the public domain
through no fault of Executive or except when required to do so by a court of
law, by any governmental agency having supervisory authority over the
business of the Company or by any administrative or legislative body
(including a committee thereof) with apparent jurisdiction to order him to
divulge, disclose or make accessible such information, in which case
Executive will inform the Company in writing promptly of such required
disclosure, but in any event at least two business days prior to disclosure.
All written Confidential Information (including, without limitation, in any
computer or other electronic format) which comes into Executive's possession
during the course of his employment shall remain the property of the Company.
Except as required in the performance of Executive's duties for the Company,
or unless expressly authorized in writing by the Board, Executive shall not
remove any written Confidential Information from the Company's premises,
except in connection with the performance of his duties for the Company and
in a manner consistent with the Company's policies regarding Confidential
Information. Upon termination of Executive's employment, Executive agrees
immediately to return to the Company all written Confidential Information in
his possession. For the purposes of this Section 2, the term "Company"
shall be deemed to include NU and the Affiliates, as defined in Section
6.1(a), of NU and the Company.
3. Non-Competition; Non-Solicitation.
(a) During his employment by the Company and for a period of two
years after Executive's termination of employment for any reason, within the
Company's "service area," as defined below, Executive will not, except with
the prior written consent of the Board, directly or indirectly, own, manage,
operate, join, control, finance or participate in the ownership, management,
operation, control or financing of, or be connected as an officer, director,
employee, partner, principal, agent, representative, consultant or otherwise
with, or use or permit his name to be used in connection with, any business
or enterprise which is engaged in any business that is competitive with any
business or enterprise in which the Company is engaged. For the purposes of
this Section, "service area" shall mean the geographic area within the states
of Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, and
Vermont, or any other geographic area in which, at the time of Executive's
termination of employment from the Company, the Company is doing business.
Executive acknowledges that the listed service area is the area in which the
Company presently does business.
(b) The foregoing restrictions shall not be construed to prohibit
the ownership by Executive of less than five percent (5%) of any class of
securities of any corporation which is engaged in any of the foregoing
businesses having a class of securities registered pursuant to the Securities
Exchange Act of 1934 (the "Exchange Act"), provided that such ownership
represents a passive investment and that neither Executive nor any group of
persons including Executive in any way, either directly or indirectly,
manages or exercises control of any such corporation, guarantees any of its
financial obligations, otherwise takes any part in its business, other than
exercising his rights as a shareholder, or seeks to do any of the foregoing.
(c) Executive further covenants and agrees that during his
employment by the Company and for the period of two years thereafter,
Executive will not, directly or indirectly, (i) solicit, divert, take away,
or attempt to solicit, divert or take away, any of the Company's "Principal
Customers," defined for the purposes hereof to include any customer of the
Company, from which $100,000 or more of annual gross revenues are derived at
such time, or (ii) encourage any Principal Customer to reduce its patronage
of the Company.
(d) Executive further covenants and agrees that during his
employment by the Company and for the period of two years thereafter,
Executive will not, directly or indirectly, solicit or hire, or encourage the
solicitation or hiring of, any person who was a managerial or higher level
employee of the Company at any time during the term of Executive's employment
by the Company by any employer other than the Company for any position as an
employee, independent contractor, consultant or otherwise. The foregoing
covenant of Executive shall not apply to any person after 12 months have
elapsed subsequent to the date on which such person's employment by the
Company has terminated.
(e) Nothing herein shall be construed as prohibiting Executive
from serving on Nuclear Advisory Boards or rendering other similar nuclear
advisory or consulting services to other entities.
(f) For the purposes of this Section 3, the term "Company" shall
be deemed to include NU and the Affiliates, as defined in Section 6.1(a), of
NU and the Company.
4. Equitable Relief.
(a) Executive acknowledges and agrees that the restrictions
contained in Sections 2 and 3 are reasonable and necessary to protect and
preserve the legitimate interests, properties, goodwill and business of the
Company, that the Company would not have entered into this Agreement in the
absence of such restrictions and that irreparable injury will be suffered by
the Company should Executive breach any of the provisions of those Sections.
Executive represents and acknowledges that (i) he has been advised by the
Company to consult his own legal counsel in respect of this Agreement, and
(ii) that he has had full opportunity, prior to execution of this Agreement,
to review thoroughly this Agreement with his counsel.
(b) Executive further acknowledges and agrees that a breach of any
of the restrictions in Sections 2 and 3 cannot be adequately compensated by
monetary damages. Executive agrees that the Company shall be entitled to
preliminary and permanent injunctive relief, without the necessity of proving
actual damages, as well as an equitable accounting of all earnings, profits
and other benefits arising from any violation of Sections 2 or 3 hereof,
which rights shall be cumulative and in addition to any other rights or
remedies to which the Company may be entitled. In the event that any of the
provisions of Sections 2 or 3 hereof should ever be adjudicated to exceed the
time, geographic, service, or other limitations permitted by applicable law
in any jurisdiction, it is the intention of the parties that the provision
shall be amended to the extent of the maximum time, geographic, service, or
other limitations permitted by applicable law, that such amendment shall
apply only within the jurisdiction of the court that made such adjudication
and that the provision otherwise be enforced to the maximum extent permitted
by law.
(c) If Executive breaches any of his obligations under Sections 2
or 3 hereof, and such breach constitutes "Cause," as defined in Section 5.3
hereof, or would constitute Cause if it had occurred during the Employment
Term on or after the Revision Date, the Company shall thereafter have no
obligation to provide Executive with the Special Retirement Benefit, but
shall remain obligated for other benefits provided in any plans, policies or
practices then applicable to Executive in accordance with the terms thereof.
(d) Executive irrevocably and unconditionally (i) agrees that any
suit, action or other legal proceeding arising out of Sections 2 or 3 hereof,
including without limitation, any action commenced by the Company for
preliminary and permanent injunctive relief and other equitable relief, may
be brought in the United States District Court for the District of
Connecticut, or if such court does not have jurisdiction or will not accept
jurisdiction, in any court of general jurisdiction in Hartford, Connecticut,
(ii) consents to the non-exclusive jurisdiction of any such court in any such
suit, action or proceeding, and (iii) waives any objection which Executive
may have to the laying of venue of any such suit, action or proceeding in any
such court. Executive also irrevocably and unconditionally consents to the
service of any process, pleadings, notices or other papers in a manner
permitted by the notice provisions of Section 10 hereof.
(e) Executive agrees that for a period of five years following the
termination of his employment by the Company he will provide, and that at all
times after the date hereof the Company may similarly provide, a copy of
Sections 2 and 3 hereof to any business or enterprise (i) which he may
directly or indirectly own, manage, operate, finance, join, control or
participate in the ownership, management, operation, financing, or control
of, or (ii) with which he may be connected as an officer, director, employee,
partner, principal, agent, representative, consultant or otherwise, or in
connection with which he may use or permit his name to be used; provided,
however, that this provision shall not apply in respect of Section 3 hereof
after expiration of the time periods set forth therein.
(f) For the purposes of this Section 4, the term "Company" shall
be deemed to include NU and the Affiliates, as defined in Section 6.1(a), of
NU and the Company.
5. Termination. The Employment Term shall terminate upon the
occurrence of any one of the following events:
5.1. Disability. The Company may terminate the Employment Term if
Executive is unable substantially to perform his duties and responsibilities
hereunder to the full extent required by the Board by reason of illness,
injury or incapacity for six consecutive months, or for more than six months
in the aggregate during any period of twelve calendar months; provided,
however, that the Company shall continue to pay Executive his Base Salary
until the Company acts to terminate the Employment Term. In addition,
Executive shall be entitled to receive (i) any amounts earned, accrued or
owing but not yet paid under Section 1 above, (ii) any other benefits in
accordance with the terms of any applicable plans and programs of the Company
and (iii) the Special Retirement Benefit Notwithstanding the foregoing, in
the event that Executive's disability occurs prior to September 1, 1999, the
Special Retirement Benefit shall be paid at the level that would be payable
after three years of service, but excluding the $500,000 lump sum payment.
Otherwise, the Company shall have no further liability or obligation to
Executive for compensation under this Agreement. Executive agrees, in the
event of a dispute under this Section 5.1, to submit to a physical
examination by a licensed physician selected by the Board.
5.2. Death. The Employment Term shall terminate in the event of
Executive's death. In such event, the Company shall pay to Executive's
executors, legal representatives or administrators, as applicable, an amount
equal to the installment of his Base Salary set forth in Section 1.4 hereof
for the month in which he dies. In addition, Executive's estate shall be
entitled to receive (i) any other amounts earned, accrued or owing but not
yet paid under Section 1 above and (ii) any other benefits in accordance with
the terms of any applicable plans and programs of the Company. Executive's
surviving spouse, if any, shall also receive the survivor annuity provided
under Executive's Special Retirement Benefit. Notwithstanding the foregoing,
in the event that Executive's death occurs prior to September 1, 1999, the
survivor annuity shall be paid at the level that would be payable after three
years of service, but excluding the $500,000 lump sum payment. Otherwise, the
Company shall have no further liability or obligation under this Agreement to
his executors, legal representatives, administrators, heirs or assigns or any
other person claiming under or through him.
5.3. Cause. The Company may terminate the Employment Term, at any time,
for "cause" upon written notice, in which event all payments under this
Agreement shall cease, except for Base Salary to the extent already accrued,
and, no Special Retirement Benefit shall be due under Section 1.5, but
Executive shall remain entitled to any other benefits in accordance with the
terms of any applicable plans and programs of the Company. For purposes of
this Agreement, Executive's employment may be terminated for "cause" if (i)
Executive is convicted of a felony, (ii) in the reasonable determination of
the Board, Executive has (x) committed an act of fraud, embezzlement, or
theft in connection with Executive's duties in the course of his employment
with the Company, (y) caused intentional, wrongful damage to the property of
the Company or intentionally and wrongfully disclosed Confidential
Information, or (z) engaged in gross misconduct or gross negligence in the
course of his employment with the Company or (iii) Executive materially
breached his obligations under this Agreement and shall not have remedied
such breach within 30 days after receiving written notice from the Board
specifying the details thereof. For purposes of this Agreement, an act or
omission on the part of Executive shall be deemed "intentional" only if it
was not due primarily to an error in judgment or negligence and was done by
Executive not in good faith and without reasonable belief that the act or
omission was in the best interest of the Company.
5.4. Termination Without Cause and Non-Renewal.
(a) The Company may remove Executive, at any time, without cause
from the position in which he is employed hereunder (in which case the
Employment Term shall be deemed to have ended) upon not less than 60 days'
prior written notice to Executive; provided, however, that, in the event that
such notice is given, Executive shall be under no obligation to render any
additional services to the Company and, subject to the provisions of Section
3 hereof, shall be allowed to seek other employment. Upon any such removal
or if the Company informs Executive that the Agreement will not be renewed
after August 31, 1999 or at the end of any subsequent renewal period,
Executive shall be entitled to receive, as liquidated damages for the failure
of the Company to continue to employ Executive, only the amount due to
Executive under the Company's then current severance pay plan for employees.
No other payments or benefits shall be due under this Agreement to Executive,
but Executive shall be entitled to any other benefits in accordance with the
terms of any applicable plans and programs of the Company. Notwithstanding
anything in this Agreement to the contrary, on or after Executive attains age
65, no action by the Company shall be treated as a removal from employment or
non-renewal if on the effective date of such action Executive satisfies all
of the requirements for the executive or high policy-making exception to
applicable provisions of state and federal age discrimination legislation
(b) Notwithstanding the foregoing, in the event that Executive
executes a written release upon such removal or non-renewal, substantially in
the form attached hereto as Annex 1, (the "Release"), of any and all claims
against the Company and all related parties with respect to all matters
arising out of Executive's employment by the Company (other than any
entitlements under the terms of this Agreement or under any other plans or
programs of the Company in which he participated and under which he has
accrued a benefit), or the termination thereof, Executive shall be entitled
to receive, in lieu of the payment described in subsection (a) hereof, which
Executive agrees to waive,
(i) as liquidated damages for the failure of the Company to
continue to employ Executive, a single cash payment, within 30 days after the
effective date of the removal or non-renewal, equal to his Base Compensation,
as defined in Section 6.1(b) below;
(ii) for a period of two years following the end of the
Employment Term, Executive and his spouse and dependents shall be eligible
for a continuation of those Benefit Coverages, as in effect at the time of
such termination or removal, and as the same may be changed from time to
time, as if Executive had been continued in employment during said period or
to receive cash in lieu of such benefits or premiums, as applicable, where
such Benefit Coverages may not be continued (or where such continuation would
adversely affect the tax status of the plan pursuant to which the Benefit
Coverage is provided) under applicable law or regulations;
(iii) any other amounts earned, accrued or owing but not
yet paid under Section 1 above and a payment equal to any unused vacation;
(iv) any other benefits in accordance with the terms of any
applicable plans and programs of the Company including the Special Retirement
Benefit. Notwithstanding the foregoing, in the event that the removal or
non-renewal occurs prior to September 1, 1999, the Special Retirement Benefit
shall be paid at the level that would be payable after three years of
service, but excluding the $500,000 lump sum payment;
(v) as additional consideration for the non-competition and
non-solicitation covenant contained in Section 3, a single cash payment,
within 30 days after the effective date of the removal or non-renewal, equal
to his Base Compensation, as defined in Section 6.1(b) below;
(vi) All stock appreciation rights and restricted stock units
granted to Executive under NU's Stock Price Recovery Plan or stock options or
restricted shares previously granted to Executive, to the extent not already
vested prior to the removal or non-renewal, shall be fully vested and
exercisable or paid as if Executive had remained actively employed by the
Company, including the right of exercise, where appropriate, within 36 months
after the removal or non-renewal; provided, however, that the stock
appreciation rights and restricted stock units shall be paid on a pro rata
basis for the number of completed months in the applicable period for any
such stock appreciation rights or restricted stock units during which
Executive was employed by the Company; and
(vii) Executive, upon retirement, shall be entitled to
participate in the Company's retiree health plan but the amount of cost
sharing under that plan shall be at the maximum level paid by any retiree of
the Company who qualifies for participation in such plan unless Executive, by
reason of his actual years of service, qualifies for a more favorable cost
sharing arrangement under the terms of such plan.
5.5. Voluntary Termination. Executive may voluntarily terminate the
Employment Term upon 30 days' prior written notice for any reason. In such
event, after the effective date of such termination, no further payments
shall be due under this Agreement except that Executive shall be entitled to
any benefits due in accordance with the terms of any applicable plan and
programs of the Company, and unless Executive has completed three years of
service, no Special Retirement Benefit shall be due under Section 1.5.
6. Payments Upon a Change in Control. The provisions of this Section
6 are effective as of the Revision Date.
6.1. Definitions. For all purposes of this Section 6, the following
terms shall have the meanings specified in this Section 6.1 unless the
context otherwise clearly requires:
(a) "Affiliate" shall mean an "affiliate" as defined in Rule 12b-2
of the General Rules and Regulations under the Exchange Act.
(b) "Base Compensation" shall mean Executive's annualized Base
Salary and all short-term incentive compensation at the target level for
Executive (but in no event less than the "President level" in effect on
January 1, 1996), specified under programs established by the Company for its
senior level executives generally, received by Executive in all capacities
with the Company, as would be reported for federal income tax purposes on
Form W-2, together with any and all salary reduction authorized amounts under
any of the Company's benefit plans or programs, for the most recent full
calendar year immediately preceding the calendar year in which occurs
Executive's Termination Date or preceding the Change of Control, if higher.
"Base Compensation" shall not include the value of any stock appreciation
rights or restricted stock units granted to Executive under NU's Stock Price
Recovery Plan.
(c) "Change of Control" shall mean the happening of any of the
following:
(i) When any "person," as such term is used in Sections 13(d) and
14(d) of the Securities Exchange Act of 1934 (the "Exchange Act"), other than
the Company, its Affiliates, or any Company or NU employee benefit plan
(including any trustee of such plan acting as trustee), is or becomes the
"beneficial owner" (as defined in Rule 13d-3 under the Exchange Act),
directly or indirectly, of securities of NU representing more than 20% of the
combined voting power of either (i) the then outstanding shares of common
stock of NU (the "Outstanding Common Stock") or (ii) the then outstanding
voting securities of NU entitled to vote generally in the election of
directors (the "Voting Securities"); or
(ii) Individuals who, as of the beginning of any twenty-four month
period, constitute the Trustees (the "Incumbent Board") cease for any reason
to constitute at least a majority of the Trustees or cease to be able to
exercise the powers of the majority of the Board, provided that any
individual becoming a trustee subsequent to the beginning of such period
whose election or nomination for election by the Company's stockholders was
approved by a vote of at least a majority of the trustees 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 is in connection with an actual or
threatened election contest relating to the election of the Trustees of NU
(as such terms are used in Rule 14a-11 of Regulation 14A promulgated under
the Exchange Act); or
(iii) Consummation by NU of a reorganization, merger or
consolidation (a "Business Combination"), in each case, with respect to which
all or substantially all of the individuals and entities who were the
respective beneficial owners of the Outstanding Common Stock and Voting
Securities immediately prior to such Business Combination do not, following
such Business Combination, beneficially own, directly or indirectly, more
than 75% of, respectively, the then outstanding shares of common stock and
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, business trust or other entity resulting from or being the
surviving entity in such Business Combination in substantially the same
proportion as their ownership immediately prior to such Business Combination
of the Outstanding Common Stock and Voting Securities, as the case may be; or
(iv) Consummation of a complete liquidation or dissolution of NU or
sale or other disposition of all or substantially all of the assets of NU
other than to a corporation, business trust or other entity with respect to
which, following such sale or disposition, more than 75% of, respectively,
the then outstanding shares of common stock and the combined voting power of
the then outstanding voting securities entitled to vote generally in the
election of directors, as the case may be, is then owned beneficially,
directly or indirectly, by all or substantially all of the individuals and
entities who were the beneficial owners, respectively, of the Outstanding
Common Stock and Voting Securities immediately prior to such sale or
disposition in substantially the same proportion as their ownership of the
Outstanding Common Stock and Voting Securities, as the case may be,
immediately prior to such sale or disposition.
(d) "Termination Date" shall mean the date of receipt of a Notice
of Termination of this Agreement or any later date specified therein.
(e) "Termination of Employment" shall mean the termination of
Executive's actual employment relationship with the Company, including a
failure to renew the Agreement after August 31, 1999 or at the end of any
subsequent renewal period, in either case occasioned by the Company's action.
(f) "Termination upon a Change of Control" shall mean a
Termination of Employment upon or within two years after a Change of Control
either:
(i) initiated by the Company for any reason other than Executive's
(w) disability, as described in Section 5.1 hereof, (x) death, (y) retirement
on or after attaining age 65, or (z) "cause," as defined in Section 5.3
hereof, or (ii) initiated by Executive (A) upon any failure of the Company
materially to comply with and satisfy any of the terms of this Agreement,
including any significant reduction by the Company of the authority, duties
or responsibilities of Executive, any reduction of Executive's compensation
or benefits due hereunder, or the assignment to Executive of duties which are
materially inconsistent with the duties of his position as defined in Section
1.2 above, or (B) if Executive is transferred, without Executive's written
consent, to a location that is more than 50 miles from Executive's principal
place of business immediately preceding the Change of Control.
6.2. Notice of Termination. Any Termination upon a Change of Control
shall be communicated by a Notice of Termination to the other party hereto
given in accordance with Section 10 hereof. For purposes of this Agreement,
a "Notice of Termination" means a written notice which (i) indicates the
specific termination provision in this Agreement relied upon, (ii) briefly
summarizes the facts and circumstances deemed to provide a basis for a
Termination of Employment and the applicable provision hereof, and (iii) if
the Termination Date is other than the date of receipt of such notice,
specifies the Termination Date (which date shall not be more than 15 days
after the giving of such notice).
6.3. Payments upon Termination. Subject to the provisions of Sections
6.6 and 6.7 hereof, in the event of Executive's Termination upon a Change of
Control, the Company agrees (a) in the event he executes the Release required
by Section 5.4(b), to pay to Executive, in a single cash payment, within
thirty days after the Termination Date, two multiplied by Executive's Base
Compensation and, in addition, all amounts, benefits and Benefit Coverages
described in Section 5.4(b)(ii), (iii), (iv) as amplified by Section 6.4(a),
(v), and (vii) as amplified by Section 6.4(b), provided that in (ii) Benefit
Coverages shall continue for three years instead of two or (b) in the event
he fails or refuses to execute the Release required by Section 5.4(b), to pay
to Executive, in a single payment, within thirty days after the Termination
Date, the amount due under Section 5.4(a) above and, in addition, all other
amounts and benefits described in Section 5.4(a).
6.4. Other Payments, Stock Option and Stock Grants, etc. Subject to the
provisions of Sections 6.6 and 6.7 hereof, in the event of Executive's
Termination upon a Change of Control, and the execution of the Release
required by Section 5.4(b):
(a) Executive shall be entitled to the Special Retirement Benefit.
Notwithstanding the foregoing, in the event that Executive's Termination
upon a Change of Control occurs prior to September 1, 1999, the Special
Retirement Benefit shall be paid at the level that would be payable after
three years of service, but including the $500,000 lump sum payment.
Executive shall determine the form of payment in which the Special Retirement
Benefit shall be paid in accordance with the terms of his previous employer's
plan or the Company's Supplemental Executive Retirement Plan for Officers
(the "Supplemental Plan"), as if the Special Retirement Benefit were due
under that Plan, or, instead, may elect to receive a single sum payment equal
to the then actuarial present value (computed using the 1983 GAM
(50%/Male/50%/ Female) Mortality Table and at an interest rate equal to the
discount rate used in the previous year's FASB 87 accounting for the
Company's Retirement Plan) of the amount of the Special Retirement Benefit.
Payment shall commence or be made within 30 days after the Termination Date
or on any date thereafter, as specified by Executive in a written election.
Such election may be made at any time and amended at any time but any
election or amendment, other than one made within 30 days of the Effective
Date, shall be ineffective if made within six months prior to the Termination
Date. In the absence of any election or determination provided for herein,
the terms of the Special Retirement Benefit shall govern the form and time of
payment.
(b) Executive's years of service with the Company through the 36th
month following the Termination Date shall be taken into account in
determining Executive's cost sharing under the Company's retiree health plan
and, in addition, 36 months shall be added to Executive's age for this
purpose.
(c) On Executive's Termination Date, all stock appreciation rights
and restricted stock units granted to Executive under NU's Stock Price
Recovery Plan or stock options or restricted shares previously granted to
Executive, to the extent not already vested prior to the Termination Date,
shall be fully vested and exercisable or paid as if Executive had remained
actively employed by the Company, including the right of exercise, where
appropriate, within 36 months after the Termination Date and, if the Change
of Control results in the Voting Securities of NU ceasing to be traded on a
national securities exchange or though the national market system of the
National Association of Securities Dealers Inc., the price at which the
rights or units may be exercised shall be the average of the closing prices
for the five trading days preceding the day such Voting Securities cease
trading.
6.5. Non-Exclusivity of Rights. Nothing in this Agreement shall prevent
or limit Executive's continuing or future participation in or rights under
any benefit, bonus, incentive or other plan or program provided by the
Company and for which Executive may qualify; provided, however, that if
Executive becomes entitled to and receives all of the payments provided for
in this Agreement, Executive hereby waives his right to receive payments
under any severance plan or similar program applicable to all employees of
the Company.
6.6. Certain Increase in Payments.
(a) Anything in this Agreement to the contrary notwithstanding, in
the event that it shall be determined that any payment or distribution by the
Company to or for the benefit of Executive, whether paid or payable or
distributed or distributable pursuant to the terms of this Agreement or
otherwise (the "Payment"), would constitute an "excess parachute payment"
within the meaning of Section 280G of the Internal Revenue Code of 1986, as
amended (the "Code"), Executive shall be paid an additional amount (the
"Gross-Up Payment") such that the net amount retained by Executive after
deduction of any excise tax imposed under Section 4999 of the Code, and any
federal, state and local income and employment tax and excise tax imposed
upon the Gross-Up Payment shall be equal to the Payment. For purposes of
determining the amount of the Gross-Up Payment, Executive shall be deemed to
pay federal income tax and employment taxes at the highest marginal rate of
federal income and employment taxation in the calendar year in which the
Gross-Up Payment is to be made and state and local income taxes at the
highest marginal rate of taxation in the state and locality of Executive's
residence on the Termination Date, net of the maximum reduction in federal
income taxes that may be obtained from the deduction of such state and local
taxes.
(b) All determinations to be made under this Section 6 shall be
made by the Company's independent public accountant immediately prior to the
Change of Control (the "Accounting Firm"), which firm shall provide its
determinations and any supporting calculations both to the Company and
Executive within 10 days of the Termination Date. Any such determination by
the Accounting Firm shall be binding upon the Company and Executive. Within
five days after the Accounting Firm's determination, the Company shall pay
(or cause to be paid) or distribute (or cause to be distributed) to or for
the benefit of Executive such amounts as are then due to Executive under this
Agreement.
(c) In the event that upon any audit by the Internal Revenue
Service, or by a state or local taxing authority, of the Payment or Gross-Up
Payment, a change is finally determined to be required in the amount of taxes
paid by Executive, appropriate adjustments shall be made under this Agreement
such that the net amount which is payable to Executive after taking into
account the provisions of Section 4999 of the Code shall reflect the intent
of the parties as expressed in subsection (a) above, in the manner determined
by the Accounting Firm.
(d) All of the fees and expenses of the Accounting Firm in
performing the determinations referred to in subsections (b) and (c) above
shall be borne solely by the Company. The Company agrees to indemnify and
hold harmless the Accounting Firm of and from any and all claims, damages and
expenses resulting from or relating to its determinations pursuant to
subsections (b) and (c) above, except for claims, damages or expenses
resulting from the gross negligence or wilful misconduct of the Accounting
Firm.
6.7 Changes to Sections 6.3 and 6.4. The payments, benefits and other
compensation provided under Sections 6.3 and 6.4 may be revised, in the sole
discretion of the Board, after the expiration of two years following written
notice to Executive of the Board's intention to do so and the changes to be
made; provided, however, that no revision may be made that would reduce the
payments, benefits and other compensation below those provided under Section
5.4 in the event Executive's employment is terminated without cause or this
Agreement is not renewed; and provided, further, that no such notice may be
given and no such revision may become effective following a Change of
Control. Notice under this Section 6.7 shall not constitute a non-renewal or
removal of Executive, nor shall any such actual revision be grounds for a
determination that this Agreement is not being renewed or that Executive has
been removed, for purposes of Section 5.4.
7. Survivorship. The respective rights and obligations of the parties
under this Agreement shall survive any termination of Executive's employment
to the extent necessary to the intended preservation of such rights and
obligations.
8. Mitigation. Executive shall not be required to mitigate the amount
of any payment or benefit provided for in this Agreement by seeking other
employment or otherwise and there shall be no offset against amounts due
Executive under this Agreement on account of any remuneration attributable to
any subsequent employment that he may obtain.
9. Arbitration; Expenses. In the event of any dispute under the
provisions of this Agreement arising on or after the Revision Date, other
than a dispute in which the primary relief sought is an equitable remedy such
as an injunction, the parties shall be required to have the dispute,
controversy or claim settled by arbitration in the City of Hartford,
Connecticut in accordance with National Rules for the Resolution of
Employment Disputes then in effect of the American Arbitration Association,
before a panel of three arbitrators, two of whom shall be selected by the
Company and Executive, respectively, and the third of whom shall be selected
by the other two arbitrators. Any award entered by the arbitrators shall be
final, binding and nonappealable (except as provided in Section 52-418 of the
Connecticut General Statutes) and judgment may be entered thereon by either
party in accordance with applicable law in any court of competent
jurisdiction. This arbitration provision shall be specifically enforceable.
The arbitrators shall have no authority to modify any provision of this
Agreement or to award a remedy for a dispute involving this Agreement other
than a benefit specifically provided under or by virtue of the Agreement. If
Executive prevails on any material issue which is the subject of such
arbitration or lawsuit, the Company shall be responsible for all of the fees
of the American Arbitration Association and the arbitrators and any expenses
relating to the conduct of the arbitration (including the Company's and
Executive's reasonable attorneys' fees and expenses). Otherwise, each party
shall be responsible for his or its own expenses relating to the conduct of
the arbitration (including reasonable attorneys' fees and expenses) and shall
share the fees of the American Arbitration Association.
10. Notices. All notices and other communications required or
permitted under this Agreement or necessary or convenient in connection
herewith shall be in writing and shall be deemed to have been given when hand
delivered or mailed by registered or certified mail, as follows (provided
that notice of change of address shall be deemed given only when received):
If to the Company, to:
Northeast Utilities Service Company
X.X. Xxx 000
Xxxxxxxx, XX 00000-0000
Attention: Senior Vice President, Secretary and General Counsel
With a required copy to:
Xxxxxx, Xxxxx & Xxxxxxx
0000 Xxx Xxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000-0000
Attention: Xxxxxx X. Xxxxxxxxxxxx, Esquire
If to Executive, to:
Xxxxx X. Xxxxxx
00 Xxxxxxxxx Xxxxx Xxxx
Xxx Xxxx, Xxxxxxxxxxx 00000
With a required copy to:
Xxxxxxx & Xxxxxxx
Xxx Xxxxxxxx Xxx
Xxxxxxxx, XX 00000-0000
Attention: Xxxxx Xxxxxx, Esquire
or to such other names or addresses as the Company or Executive, as the case
may be, shall designate by notice to each other person entitled to receive
notices in the manner specified in this Section.
11. Contents of Agreement; Amendment and Assignment.
(a) This Agreement sets forth the entire understanding between the
parties hereto with respect to the subject matter hereof and cannot be
changed, modified, extended or terminated except upon written amendment
approved by the Board and executed on its behalf by a duly authorized officer
and by Executive.
(b) All of the terms and provisions of this Agreement shall be
binding upon and inure to the benefit of and be enforceable by the respective
heirs, executors, administrators, legal representatives, successors and
assigns of the parties hereto, except that the duties and responsibilities of
Executive under this Agreement are of a personal nature and shall not be
assignable or delegatable in whole or in part by Executive. The Company
shall require any successor (whether direct or indirect, by purchase, merger,
consolidation, reorganization or otherwise) to all or substantially all of
the business or assets of the Company, by agreement in form and substance
satisfactory to Executive, expressly to assume and agree to perform this
Agreement in the same manner and to the extent the Company would be required
to perform if no such succession had taken place.
12. Severability. If any provision of this Agreement or application
thereof to anyone or under any circumstances is adjudicated to be invalid or
unenforceable in any jurisdiction, such invalidity or unenforceability shall
not affect any other provision or application of this Agreement which can be
given effect without the invalid or unenforceable provision or application
and shall not invalidate or render unenforceable such provision or
application in any other jurisdiction. If any provision is held void,
invalid or unenforceable with respect to particular circumstances, it shall
nevertheless remain in full force and effect in all other circumstances.
13. Remedies Cumulative; No Waiver. No remedy conferred upon a party
by this Agreement is intended to be exclusive of any other remedy, and each
and every such remedy shall be cumulative and shall be in addition to any
other remedy given under this Agreement or now or hereafter existing at law
or in equity. No delay or omission by a party in exercising any right,
remedy or power under this Agreement or existing at law or in equity shall be
construed as a waiver thereof, and any such right, remedy or power may be
exercised by such party from time to time and as often as may be deemed
expedient or necessary by such party in its sole discretion.
14. Beneficiaries/References. Executive shall be entitled, to the
extent permitted under any applicable law, to select and change a beneficiary
or beneficiaries to receive any compensation or benefit payable under this
Agreement following Executive's death by giving the Company written notice
thereof. In the event of Executive's death or a judicial determination of
his incompetence, reference in this Agreement to Executive shall be deemed,
where appropriate, to refer to his beneficiary, estate or other legal
representative.
15. Miscellaneous. All section headings used in this Agreement are for
convenience only. This Agreement may be executed in counterparts, each of
which is an original. It shall not be necessary in making proof of this
Agreement or any counterpart hereof to produce or account for any of the
other counterparts.
16. Withholding. The Company may withhold from any payments under this
Agreement all federal, state and local taxes as the Company is required to
withhold pursuant to any law or governmental rule or regulation. Executive
shall bear all expense of, and be solely responsible for, all federal, state
and local taxes due with respect to any payment received under this
Agreement.
17. Governing Law. This Agreement shall be governed by and interpreted
under the laws of the State of Connecticut without giving effect to any
conflict of laws provisions.
18. Adoption by Affiliates; Obligations. The obligations under this
Agreement shall, in the first instance, be paid and satisfied by the Company;
provided, however, that with respect to those provisions of this Agreement to
be performed during the Employment Term on or after the Revision Date, the
Company will use its best efforts to cause NU and each entity in which NU
(or its successors or assigns) now or hereafter holds, directly or
indirectly, more than a 50 percent voting interest and that has at least
fifty (50) employees on its direct payroll (an "Employer") to approve and
adopt this Agreement and, by such approval and adoption, to be bound by the
terms hereof as though a signatory hereto. With respect to such provisions,
if the Company shall be dissolved or for any other reason shall fail to pay
and satisfy the obligations, each individual Employer shall thereafter shall
be jointly and severally liable to pay and satisfy the obligations to
Executive.
19. Establishment of Trust. The Company may establish an irrevocable
trust fund pursuant to a trust agreement to hold assets to satisfy any of its
obligations under this Agreement. Funding of such trust fund shall be
subject to the Board's discretion, as set forth in the agreement pursuant to
which the fund will be established.
IN WITNESS WHEREOF, the undersigned, intending to be legally bound, have
executed this Agreement as of the date first above written.
NORTHEAST UTILITIES
SERVICE COMPANY
By: /s/Xxxxxxx X. Xxx
/s/Xxxxx X. Xxxxxx
Executive
