Contract
| * |
This
is an Agreement (the “2005 Plan”), entered into as of the date set forth
on the Summary Schedule which is attached hereto and made a part hereof,
and as amended from time to time thereafter, by and between GREEN MOUNTAIN
POWER CORPORATION (hereinafter “Company”) and the Executive named on the
Summary Schedule (hereinafter “Executive”). |
| * |
WHEREAS,
the Executive has provided valuable services to the Company and the
Company desires to retain the Executive’s valuable services and to aid in
providing retirement and death benefits to the Executive and his
beneficiaries; |
| * |
WHEREAS,
the Executive is a highly compensated managerial
employee; |
WHEREAS,
the Executive and the Company entered into an Amended Supplemental Retirement
Plan on April 20, 1995 (the “Plan”);
WHEREAS,
the Plan was amended by resolutions adopted by the Company’s Board of Directors
on December 30, 2004, in order to assure the Plan’s exemption from the
limitations and requirements prescribed by Section 409A of the Internal Revenue
Code of 1986, as amended, and to approve the establishment of this 2005
Plan;
WHEREAS,
the Executive and the Company wish to enter into this Agreement to memorialize
the terms of the 2005 Plan;
| * |
WHEREAS,
the retirement and death benefits provided herein constitute an important
and integral portion of the Executive’s financial and retirement planning;
and |
| * |
WHEREAS,
in reliance on the availability of the benefits provided Executive herein,
Executive has chosen to forego obtaining benefits from other
sources. |
| * |
NOW
THEREFORE, the Company and the Executive in consideration of the terms and
conditions set forth herein hereby mutually covenant and agree as
follows: |
| 1. |
Benefit
Payments. Unless the Executive’s employment is terminated for cause (gross
misconduct) on or before December 31, 2005, the Company will pay the
Executive the monthly benefit set forth on the Summary Schedule. The first
payment of such monthly benefit shall be paid on January 1, 2006. The
payment of such monthly benefit shall continue thereafter for fifteen
years. If the Executive dies on or after January 1, 2006 and before the
payments guaranteed for fifteen years have been paid, the unpaid balance
of the actual payments guaranteed for fifteen years will continue to be
paid by the Company to the beneficiaries named in the Summary Schedule. If
the Executive dies before January 1, 2006 and before the Executive’s
employment is terminated for cause (gross misconduct), then the monthly
benefit set forth on the Summary Schedule shall be paid by the Company to
the Executive’s beneficiaries named in the Summary Schedule for fifteen
years. |
| 2. |
Death
Benefit. If the Executive dies after payment of the monthly benefits to
the Executive have commenced pursuant to Paragraph 1 above, then the
Company shall pay to the Executive’s beneficiaries named in the Summary
Schedule an additional benefit of One Hundred Thousand Dollars
($100,000.00). |
| 3. |
Benefits
on a Change in Control. Upon a termination of employment within the
meaning of a certain Letter Agreement by and between the Company and the
Executive that concerns a change in control of the company (the “Letter
Agreement”), as such Letter Agreement may be modified from time to time)
and before January 1, 2006 for any reason following a Change in Control
(as defined in the Letter Agreement) except for cause (gross misconduct),
the Executive shall be deemed to have satisfied all requirements for the
receipt of benefits under this 2005 Plan. The Company will pay to the
Executive a single lump sum benefit in lieu of the payments otherwise due
under the terms of this 2005 Plan on the date that is six (6) months after
the Executive’s termination of employment. Said lump sum payment shall be
the present value equivalence of the amount per month set forth on the
Summary Schedule guaranteed for fifteen years commencing within thirty
days of the Executive’s termination of employment and shall not be reduced
to reflect that the payment date precedes the Executive’s attaining age
65. The interest rate used to calculate the present value of the amount
per month set forth in the Summary Schedule shall be the “Applicable
Interest Rate” as defined in the Employees’ Retirement Plan of Green
Mountain Power Corporation (“the Retirement Plan”) or, if the Retirement
Plan shall cease to define Applicable Interest Rate, such similar interest
rate as shall be used under the Retirement Plan or a similar plan to
determine the present value of benefits payable in a lump sum. The timely
payment of such lump sum benefit to the Executive shall be treated as
compliance with the provisions of Section 11
hereof. |
| 4. |
Disability;
Leave of Absence. If the Executive shall become disabled within the
meaning of the long-term disability plan of the Company and prior to
termination of employment with the Company, the Executive shall be
considered to be continuing in employment as an executive for as long a
such disability exists, but not after December 31, 2005, and the
Executive’s salary as referred to on the Summary Schedule shall be deemed
to be the Executive’s annual base compensation on the date of onset of the
disability. |
| 5. |
Executives
of Subsidiaries. For purposes of this 2005 Plan, employment by the Company
shall include employment by a wholly-owned subsidiary of the Company. The
transfer of an Executive from the Company to any wholly-owned subsidiary
of the Company, or from any wholly-owned subsidiary to the Company, or
from one wholly-owned subsidiary to another shall not constitute a
termination of such Executive’s employment by the Company under this 2005
Plan. |
| 6. |
Employment
and Other Rights. This 2005 Plan creates no rights whatsoever in the
Executive to continue in the employ of the Company for any length of time,
nor does it create any rights in the Executive or obligations on the party
of the Company except as set forth herein. |
| 7. |
Anti-Alienability
Clause. Neither the Executive nor any beneficiary shall transfer, assign,
pledge, mortgage or encumber any of the benefits and payments hereunder.
The benefits shall not be subject to seizure, lien, judgment, alimony,
levy, garnishment, or attachment. In the event that the Executive or any
beneficiary shall attempt any of the acts described in this Paragraph,
then the payment of installment payments or benefits by the Company shall
immediately terminate. |
| 8. |
No
Effect on Other Plans. Nothing contained herein shall affect any right or
privilege of the Executive with regard to other employee plans the Company
has, or may have in the future. |
| 9. |
Reorganization
of the Company. In addition to those rights granted Executive under a
certain Letter Agreement dated December 6, 1998 that concerns a change in
control of the Company, the Company agrees that it will not merge or
consolidate with any other company, business, corporation, partnership, or
organization, and that it will not permit any of its activities to be
taken over unless and until the succeeding or continuing corporation
expressly assumes all rights, duties, privileges and obligations herein
set forth. In the event the Company fails to comply with this provision,
the Executive or Executive’s beneficiary, as the case may be, shall be
entitled to benefits equal to one hundred percent (100%) of those
otherwise provided herein. If benefits are payable under the
above-identified Letter Agreement, then the Executive shall be deemed to
have satisfied all requirements for the full vesting of benefits under
this Agreement on the day prior to termination of employment with the
Company. |
| 10. |
Unsecured
Provisions. The rights of the Executive under this 2005 Plan, and of any
beneficiary shall be solely those of an unsecured creditor of the Company.
Any asset acquired by the Company in connection with any obligation herein
shall not be deemed to be held in trust for the Executive or beneficiary.
All such assets remain general, unpledged assets of the
Company. |
| 11. |
Communications.
Any notice or communication shall be made in writing and addressed as the
case may be to the principal offices of the Company and the principal
residence of the Executive. Each party shall notify the other of a change
of address of the principal office and principal
residence. |
| 12. |
Facility
of Payment. If any installment or payment is required to be made by the
Company under this 2005 Plan to any person under a legal disability at the
time, then the Company may, in its sole discretion, make the payment in
any of the following ways: |
| A. |
Directly
to the person. |
| B. |
To
the legal representative of the person. |
| C. |
To
some near relative of the person, said payment is to be used for the
latter’s benefit. |
| D. |
Directly
for the payment of expenses relating to the health, maintenance, support
and education of the person. |
| * |
Any
such payment by the Company shall be a discharge of the obligation to make
said payment. The Company shall not be liable for making the payment to
any of the parties enumerated above. |
| 13. |
Arbitration.
In the event of any dispute arising between the parties to this 2005 Plan,
the parties agree that such controversy shall be settled exclusively by
arbitration in Burlington, Vermont, in accordance with the rules of the
American Arbitration Association. Judgment may be entered on the
arbitrator’s award in any court having jurisdiction. In the event that the
Executive prevails and is awarded benefits or money damages by the
arbitrator, such benefits or damages shall be equal to one hundred
twenty-five (125%) of the benefits or damages otherwise due under this
2005 Plan; however, if the arbitrator finds that the Company acted in good
faith, such benefits or damages shall only be equal to one hundred percent
(100%) of the amount due under this 2005 Plan. |
| 14. |
Attorney’s
Fees. The Company shall pay the Executive or his beneficiaries all costs
and expenses, including reasonable attorney’s fees and arbitration costs,
incurred by them in reasonably exercising any of their rights hereunder,
or in enforcing any terms, conditions, or provisions
hereof. |
| 15. |
State
Law. This 2005 Plan shall be construed under the laws applicable to
agreements made entirely within the State of
Vermont. |
| 16. |
Revocability.
This 2005 Plan may be revoked or amended in whole or part only by writing
signed by both parties hereto (except as set forth in Paragraph 17
below). |
| 17. |
Amendment.
Notwithstanding any other provision of this 2005 Plan, in the event of a
substantial change in the federal income tax laws affecting the economic
viability of this 2005 Plan, the Board of Directors may amend the Plan by
freezing the Executive’s salary level for purposes of this 2005 Plan at
the level as of date of the amendment, provided, however, that this right
to amend shall terminate upon a change in control of the Company as
“change in control” is defined in a certain Letter Agreement between the
Executive and the Company dated December 6, 1998 that concerns such an
event. |
| 18. |
Whole
Agreement. This writing contains the whole agreement of the parties
concerning the 2005 Plan, with no other understandings or provisions other
than what is contained herein. |
ACKNOWLEDGMENT
OF ARBITRATION
| * |
The
parties hereto understand that this 2005 Plan contains an agreement to
arbitrate. After signing this document, the parties understand that they
will not be able to bring a lawsuit concerning any dispute that may arise
which is covered by the arbitration agreement, unless it involves a
question of constitutional or civil rights. Instead, the parties agree to
submit any such dispute to an impartial
arbitrator. |
| * |
EXECUTED
this 27th day of May, 2005. |
IN THE
PRESENCE OF:
/s/Xxxxx
Xxxxxxx
/s/Xxxxxxx
X. Xxxxx
(as to
both) Executive
/s/Xxxxxx
X. Xxxxxxx, Xx. GREEN
MOUNTAIN POWER CORPORATION
(as to
both)
By: /s/
Xxxxxxxxxxx X. Xxxxxx
Duly
Authorized Agent
SUMMARY
SCHEDULE
1. Name of
Executive: Xxxxxxx
X. Xxxxx
2. Address: 00
Xxxxxxx Xxxx
Xxxxxxxxxx,
Xxxxxxx 00000
3. Date of
Agreement: May 27,
2005.
4. Monthly
Retirement Benefit: 33% of
the Executive’s Salary from the Company for the 12 months before termination of
employment divided by 12 less the monthly benefit payable to the Executive (in
the same form of benefit) under the Amended and Restated Supplemental Executive
Retirement Plan between the Company and the Executive dated April 20,
1995.
5. Beneficiaries: My wife,
Xxxxx X. Xxxxxxx, if living; otherwise
equally
to my children, Xxxxxxx Xxxx Xxxxx, Xxxxxx
X. Xxxxx
and Xxxxx Xxxxxx.
|
In
the event there are no surviving beneficiaries, then the benefit shall be
paid to the Executive’s estate. |
Dated at
Colchester, Vermont, this 27th day of May, 2005.
WITNESS:
/s/Xxxxx
Xxxxxxx /s/Xxxxxxx
X. Xxxxx
(as to
both) Executive
GREEN
MOUNTAIN POWER CORPORATION
/s/Xxxxxx
X. Xxxxxxx, Xx. /s/Xxxxxxxxxxx
X. Xxxxxx
(as to
both) Duly
Authorized Agent
