Exhibit 10.1.5
RESTRICTED STOCK UNIT AWARD AGREEMENT
AGREEMENT by and between Consolidated Edison, Inc., a New York
Corporation ("CEI"), and Xxxxxxx X. Xxxx (the "Executive"), dated as of May 31,
2002.
WHEREAS, the Executive is currently serving as President of Orange and
Rockland Utilities, Inc., a New York corporation and subsidiary of CEI, (CEI and
its subsidiaries and affiliates hereinafter collectively referred to as the
"Company"); and
WHEREAS, the parties desire to enter into this Agreement providing for
the granting of restricted stock units ("Units") pursuant to the terms and
conditions set forth below.
NOW, THEREFORE, IN CONSIDERATION of the mutual premises, covenants and
agreements set forth below, it is hereby agreed as follows:
1. RESTRICTED STOCK UNIT AWARD. In consideration of his continued
employment from the date of this Agreement through August 31, 2005, ("Employment
Period"), the Executive shall be granted an award (the " Restricted Stock Unit
Award") of restricted stock units ("Units") with respect to 20,000 shares of the
Common Shares ($.10 par value) of CEI ("Stock"), effective as of the date of
this Agreement, in accordance with the following terms and conditions:
(a) Each Unit shall represent the right, upon vesting, to receive the
cash value of one share of Stock. The cash value of a unit shall equal the
closing price of a share of Stock in the Consolidated Reporting System as
reported in the Wall Street Journal or in a similarly readily available
public source for the trading day immediately prior to the applicable
transaction date. If no trading of shares of Stock occurred on such date,
the closing price of a share of Stock in such System as reported for the
preceding day on which sales of shares of Stock occurred shall be used.
(b) The Executive's Units shall vest in accordance with the following
schedule, provided that the Executive has remained continuously employed by
the Company, or its successor, during the Employment Period through the
dates indicated below:
Percentage of Then
Outstanding Non Vested
Date Units
---- ----------------------
8/31/2004 50%
8/31/2005 100%
(c) If, during the Employment Period and prior to a Change in Control,
the Company terminates the Executive's employment for Cause or without
Cause or the Executive terminates his employment, the Executive shall
forfeit all right to Units that are not vested as of the Date of
Termination. If, during the Employment Period and following a Change in
Control, the Company shall terminate the Executive's employment without
Cause or the Executive terminates his employment for Good Reason, the
Executive's Units shall fully and immediately vest as of the Date of
Termination. If, during the Employment Period, the Executive's employment
terminates by reason of death or Disability, the Executive's Units shall
fully and immediately vest as of the Date of Termination. If, during the
Employment Period, the Executive retires, unless the Board otherwise
determines, there shall be no acceleration of vesting of any portion of the
Restricted Stock Unit Award not yet earned.
(d) Subject to any election made pursuant to Section 1 (h), once Units
shall vest, CEI shall promptly pay the Executive the cash value of the
shares of Stock represented by the Units. Prior to vesting, the Units shall
represent an unfunded and unsecured promise to pay the Executive the cash
value of shares of Stock upon vesting thereof.
(e) Units may not be sold, assigned, transferred, pledged,
hypothecated or otherwise disposed of, except by will or the laws of
descent and distribution. Any attempted sale, assignment, transfer, pledge,
hypothecation or disposition in contravention of the foregoing shall be
null and void and of no effect.
(f) (i) Except as otherwise provided herein, the Executive shall
have no rights of a stockholder with respect to the shares of
Stock represented by Units, including no right to vote the
shares, to receive dividends and other distributions thereon
and to participate in any change in capitalization of CEI.
(ii) In the event of any change in capitalization resulting in
the issuance of additional shares to CEI's stockholders, the
shares of Stock represented by his Units shall be equitably
adjusted as determined in good faith by the CEI's Executive
Pension and Personnel Committee.
(iii) Prior to the delivery of the cash value of the shares of
Stock upon vesting of Units, at the time of each distribution
of any regular cash dividend paid by CEI in respect of Stock,
the Executive shall be entitled to receive a cash payment from
the Company equal to the aggregate regular cash dividend
payment that would have been made in respect of the shares of
Stock represented by Units which have not yet vested, as if
the shares represented by such Units had been actually
delivered to the Executive, provided, that no such payment in
respect of shares of Stock represented by Units shall be made
if, prior to the time such payment is due, the
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Executive's rights with respect to such Units have previously
terminated under this Agreement.
(iv) In the event of a dividend payable in shares of Stock
instead of cash, the Executive shall be entitled to receive on
the distribution date additional Units in such number that
would have been received in respect of the shares of Stock
represented by Units that have not yet vested, as if the
shares represented by such Units had actually been delivered
to the Executive.
(v) The Executive hereby elects to defer the receipt of any
dividend equivalent cash payments that may become payable to
the Executive prior to December 31, 2003 and have the cash
payment invested under the Company's Deferred Income Plan
according to the terms and conditions of the Deferred Income
Plan.
(vi) Prior to the commencement of a calendar year, beginning
with calendar year 2004, the Executive shall have the right to
elect to defer receipt of any dividend equivalent cash
payments that may become payable to the Executive in the
calendar year and to have such cash payments invested under
the Company's Deferred Income Plan according to the terms and
conditions of the Deferred Income Plan.
(g) CEI's Executive Pension and Personnel Committee may make such
provisions and take such steps as it may deem necessary or appropriate for the
withholding of any taxes that the Company is required by law or regulation of
any governmental authority, whether federal, state or local, domestic or
foreign, to withhold in connection with the Restricted Stock Unit Award,
including, but not limited to (1) withholding the amount due from the
distribution of the cash value of the Units, or (2) withholding the amount due
from the Executive's other compensation.
(h) Prior to the commencement of the calendar year in which the Units
vest, the Executive may elect: (1) to defer the vesting of all or a portion of
the Units, (2) to have, upon vesting, the cash value of all or a portion of the
Units deferred and invested under the Company's Deferred Income Plan according
to the terms and conditions of the Deferred Income Plan, or (3) any combination
of the above listed options. If no such election is made, upon vesting the
Executive will automatically receive a distribution of the cash value of the
shares of Stock represented by the Units as set forth above in Section 1. (d).
(i) It is agreed that the Restricted Stock Unit Award (including the
grant of Units and any dividend equivalents or other distributions in respect of
the Units) shall not be included in the Executive's pension calculation.
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2. CHANGE IN CONTROL.
Upon the occurrence of a Change in Control during the
Employment Period, the Restricted Stock Unit Award shall continue in effect and
vest (or be forfeited) in accordance with provisions of this Agreement as though
no Change in Control had occurred, except that, as appropriate, the shares of
Stock represented by the Restricted Stock Unit Award shall be treated the same
as all other shares of Stock of CEI in any transaction constituting a Change in
Control. The Executive's rights upon a termination of employment by the Company
without Cause, by reason of death or Disability or by the Executive for Good
Reason, which termination occurs following a Change in Control, shall be as
specified above in Section 1.(c).
3. DEFINITIONS. For purposes of this Agreement the following
definitions apply:
(a) "Cause" shall mean:
(i) willful and continued failure by the Executive to
substantially perform his duties or
(ii) the conviction of the Executive of a felony or the entering
by the Executive of a plea of nolo contendere to a felony, in
either case having a significant adverse effect on the business
and affairs of the Company. No act or failure to act on the part
of the Executive shall be considered "willful" unless it is done,
or omitted to be done, by the Executive in bad faith or without
reasonable belief that the Executive's action or omission was in
the best interests of the Company. Any act or failure to act that
is based upon authority given pursuant to a resolution duly
adopted by the Board, or the advice of counsel for the Company,
shall be conclusively presumed to be done, or omitted to be done,
by the Executive in good faith and in the best interests of the
Company. The Company expressly acknowledges that Cause will not
exist merely because of a failure of the Company or its
affiliates to meet budgeted results.
(iii) A termination of the Executive's employment for Cause shall
be effected in accordance with the following procedures. The
Company shall give the Executive written notice ("Notice of
Termination for Cause") of its intention to terminate the
Executive's employment for Cause, setting forth in reasonable
detail the specific conduct of the Executive that it considers to
constitute Cause and the specific provision(s) of this Agreement
on which it relies. Such notice shall be given no later than 60
days after the act or failure (or the last in a series of acts or
failures) that the Company alleges to constitute Cause. The
Executive shall have 30 days after receiving the Notice of
Termination for Cause in which to cure such act or failure, to
the extent such cure is possible. If the Executive fails to cure
such act or failure to the reasonable satisfaction of the Board,
the Company shall give the Executive a second written notice
stating the date, time and place of a
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special meeting of the Board called and held specifically for the
purpose of considering the Executive's termination for Cause,
which special meeting shall take place not less than ten and not
more than twenty business days after the Executive receives
notice thereof. The Executive shall be given an opportunity,
together with counsel, to be heard at the special meeting of the
Board. The Executive's termination for Cause shall be effective
when and if a resolution is duly adopted at such special meeting
by the affirmative vote of a majority of the Board stating that
in the good faith opinion of the Board, the Executive is guilty
of the conduct described in the Notice of Termination for Cause
and that such conduct constitutes Cause under this Agreement.
(b) "Change in Control" shall mean the occurrence of any of the
following events after the date of this Agreement:
(i) any "person" (within the meaning of Section 13(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act")
is or becomes the beneficial owner within the meaning of Rule
13d-3 under the Exchange Act (a "Beneficial Owner"), directly or
indirectly, of securities of CEI (not including in the securities
beneficially owned by such person any securities acquired
directly from CEI or its affiliates) representing 20% or more of
the combined voting power of CEI's then outstanding securities,
excluding any person who becomes such a Beneficial Owner in
connection with a transaction described in clause (A) of
paragraph (iii) below; or
(ii) the following individuals cease for any reason to constitute
a majority of the number of directors of CEI then serving:
individuals who, on the date of this Agreement, constitute the
Board and any new director (other than a director whose initial
assumption of office is in connection with an actual or
threatened election contest, including but not limited to a
consent solicitation, relating to the election of directors of
CEI) whose appointment or election by the Board or nomination for
election by CEI's stockholders was approved or recommended by a
vote of at least two-thirds (2/3) of the directors then still in
office who either were directors on the date hereof or whose
appointment, election or nomination for election was previously
so approved or recommended; or
(iii) the shareholders of CEI approve or there is consummated a
merger or consolidation of CEI or any direct or indirect
wholly-owned subsidiary of CEI with any other corporation, other
than (A) a merger or consolidation which would result in the
voting securities of CEI outstanding immediately prior to such
merger or consolidation continuing to represent (either by
remaining outstanding or by being converted into voting
securities of the surviving entity or any parent thereof), in
combination with the ownership of any trustee or other fiduciary
holding securities under an employee benefit plan of CEI or any
subsidiary of CEI, at least 65% of the combined voting power of
the securities of CEI or such surviving entity or any parent
thereof outstanding immediately after such merger or
consolidation, or (B) a merger or consolidation effected to
implement a
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recapitalization of CEI (or similar transaction) in which no
person is or becomes the Beneficial Owner, directly or
indirectly, of securities of CEI representing 20% or more of the
combined voting power of CEI's then outstanding securities; or
(iv) the shareholders of CEI approve a plan of complete
liquidation or dissolution of CEI or there is consummated an
agreement for the sale or disposition by CEI of all or
substantially all of CEI's assets, other than a sale or
disposition by CEI of all or substantially all of CEI's assets to
an entity, at least 75% of the combined voting power of the
voting securities of which are owned by stockholders of CEI in
substantially the same proportions as their ownership of CEI
immediately prior to such sale.
(v) Notwithstanding the foregoing, a "Change in Control" shall
not be deemed to have occurred by virtue of the consummation of
any transaction or series of integrated transactions immediately
following which the record holders of the common stock of CEI
immediately prior to such transaction or series of transactions
continue to have substantially the same proportionate ownership
in an entity which owns all or substantially all of the assets of
CEI immediately following such transaction or series of
transactions.
(c) "Date of Termination" means the date of the Executive's
death, the Disability Effective Date, the date on which the termination of the
Executive's employment by the Company for Cause or without Cause or by the
Executive for Good Reason is effective, or the effective date specified in a
notice of a termination of employment without Good Reason from the Executive to
the Company, or the effective date of the Executive's retirement, as the case
may be.
(d) "Disability" means that: (i) the Executive has been unable,
for the period, if any, specified in the Company's disability plan for senior
executives, but not less than a period of 180 consecutive days, to perform the
Executive's duties, and (ii) a physician selected by the Company or its
insurers, and acceptable to the Executive or the Executive's legal
representative, has determined that the Executive is disabled within the meaning
of the applicable disability plan for senior executives. If the Company
determines in good faith that the Disability of the Executive has occurred
during the Employment Period (pursuant to the definition of Disability set forth
above), it may give to the Executive written notice of its intention to
terminate the Executive's employment. In such event, the Executive's employment
with the Company shall terminate effective on the 30th day after receipt of such
notice by the Executive (the "Disability Effective Date"), provided that, within
the 30 days after such receipt, the Executive shall not have returned to
full-time performance of the Executive's duties.
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(e) "Good Reason" following a Change in Control shall mean:
(i) any adverse change in the Executive's titles, authority,
duties, responsibilities and reporting lines as in effect
immediately prior to a Change in Control, or the assignment to
the Executive of any duties or responsibilities inconsistent in
any respect with those customarily associated with the
position(s) held by the Executive immediately prior to a Change
in Control;
(ii) the appointment of any person other than the Executive to
the position held by the Executive immediately prior to a Change
in Control or any other position or title conferring similar
status or authority;
(iii) any reduction in the Executive's salary, target annual
bonus, target long-term incentive or Retirement benefit as in
effect immediately prior to a Change in Control;
(iv) any requirement by the Company that the Executive's services
be rendered primarily at an office or location that is more than
50 miles from the Executive's employment office or location
immediately prior to a Change in Control;
(v) any purported termination of the Executive's employment by
the Company for a reason or in a manner not expressly permitted
by this Agreement;
(vi) any failure by CEI to comply with Section 5(c) of this
Agreement;
(vii) any other material breach of this Agreement by the Company
that either is not taken in good faith or, even if taken in good
faith, is not remedied by the Company promptly after receipt of
notice thereof from the Executive;
(viii) Following a Change in Control, the Executive's
determination that an act or failure to act constitutes Good
Reason shall be conclusively presumed to be valid unless such
determination is decided to be unreasonable by an arbitrator
pursuant to Section 4; or
(ix) A termination of employment by the Executive for Good Reason
shall be effectuated by giving the Company written notice
("Notice of Termination for Good Reason") of the termination,
setting forth in reasonable detail the specific acts or omissions
of the Company that constitute Good Reason and the specific
provision(s) of this Agreement on which the Executive relies.
Unless the Board determines otherwise, a Notice of Termination
for Good Reason by the Executive
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act or omission (or the last in a series of acts or omissions)
that the Executive alleges to constitute Good Reason, and the
Company shall have 30 days from the receipt of such Notice of
Termination for Good Reason to cure the conduct cited therein. A
termination of employment by the Executive for Good Reason shall
be effective on the final day of such 30-day cure period unless
prior to such time the Company has cured the specific conduct
asserted by the Executive to constitute Good Reason to the
reasonable satisfaction of the Executive (unless the notice sets
forth a later date (which date shall in no event be later than 30
days after the notice is given) as of which such termination
shall be effective).
(x) A termination of the Executive's employment by the Executive
without Good Reason shall be effected by giving the Company
written notice specifying the effective date of termination.
4. DISPUTES.
Any dispute about the validity, interpretation, effect or
alleged violation of this Agreement shall be resolved by confidential binding
arbitration to be held in
New York,
New York, in accordance with the Commercial
Arbitration Rules of the American Arbitration Association. Judgment upon the
award rendered by the arbitrator(s) may be entered in any court having
jurisdiction thereover. All costs and expenses incurred by the Company or the
Executive or the Executive's beneficiaries in connection with any such
controversy or dispute, including without limitation reasonable attorney's fees,
shall be borne by the Company as incurred, except that the Executive shall be
responsible for any such costs and expenses incurred in connection with any
claim determined by the arbitrator(s) to have been without reasonable basis or
to have been brought in bad faith. The Executive shall be entitled to interest
at the applicable Federal rate provided for in Section 7872(f)(2)(A) of the
Code, on any delayed payment which the arbitrator(s) determine he was entitled
to under this Agreement.
5. SUCCESSORS.
(a) NO ASSIGNMENT BY EXECUTIVE. This Agreement is personal to
the Executive and without the prior written consent of CEI shall not be
assignable by the Executive otherwise than by will or the laws of descent and
distribution. This Agreement shall inure to the benefit of and be binding upon
and enforceable by the Executive's legal representatives.
(b) SUCCESSORS TO CEI. This Agreement shall inure to the
benefit of and be binding upon and enforceable by CEI and its successors and
assigns.
(c) PERFORMANCE BY A SUCCESSOR TO CEI. CEI will require any
successor (whether direct or indirect, by purchase, merger, consolidation or
otherwise) to all or substantially all of the business and/or assets of CEI to
assume expressly and agree to perform this Agreement in the same manner and to
the same extent that CEI would be required to perform it if no such succession
had taken place. As used in this Agreement, "CEI" shall mean
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CEI as hereinbefore defined and any successor to its business and/or assets as
aforesaid which assumes and agrees to perform this Agreement by operation of
law, or otherwise.
6. MISCELLANEOUS.
(a) GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of
New York applicable to
agreements executed and performed entirely therein. The captions of this
Agreement are not part of the provisions hereof and shall have no force or
effect.
(b) NOTICES. All notices and other communications hereunder
shall be in writing and shall be given by hand delivery to the other party or by
registered or certified mail, return receipt requested, postage prepaid,
addressed as follows:
If to the Executive: Xxx Xxxx Xxxx Xxxxx
Xxxxx Xxxxx, XX 00000
If to the Company: 0 Xxxxxx Xxxxx
Xxx Xxxx, XX 00000,
Attention: General Counsel
or to such other address as either party shall have furnished to the other in
writing in accordance herewith. Notice and communications shall be effective
when actually received by the addressee.
(c) INVALIDITY. The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement. If any provision of this Agreement shall
be held invalid or unenforceable in part, the remaining portion of such
provision, together with all other provisions of this Agreement, shall remain
valid and enforceable and continue in full force and effect to the fullest
extent consistent with law.
(d) TAX WITHHOLDING. Notwithstanding any other provision of
this Agreement, the Company may withhold from any amounts payable under this
Agreement such Federal, state, local or foreign taxes as shall be required to be
withheld pursuant to any applicable law or regulation.
(e) FAILURE TO ASSERT RIGHTS. The Executive's or the Company's
failure to insist upon strict compliance with any provisions of, or to assert
any right under, this Agreement shall not be deemed to be a waiver of such
provision or right or of any other provision of or right under this Agreement.
(f) NO ALIENATION. The rights and benefits of the Executive
under this Agreement may not be anticipated, assigned, alienated or subject to
attachment, garnishment, levy, execution or other legal or equitable process
except as required by law. Any attempt by the
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Executive to anticipate, alienate, assign, sell, transfer, pledge, encumber or
charge the same shall be void. Payments hereunder shall not be considered assets
of the Executive in the event of insolvency or bankruptcy.
(g) ENTIRE AGREEMENT. This Agreement represents the complete
agreement between the Executive and the Company relating to the granting of
restricted stock units and may not be altered or changed except by written
agreement executed by the parties hereto or their respective successors or legal
representatives. This Agreement supersedes all prior agreements and other
understandings between the parties with respect to the subject matter herein
except for the portions thereof, which have been incorporated by reference in
this Agreement.
IN WITNESS WHEREOF, the Executive and, pursuant to due
authorization from its Board of Directors, the Company have caused this
Agreement to be executed as of the day and year first above written.
CONSOLIDATED EDISON, INC.
By:
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Xxxxxx X. XxXxxxx
Chairman of the Board and Chief Executive Officer
-------------------------------------
Xxxxxxx X. Xxxx
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