CHANGE IN CONTROL SEVERANCE AGREEMENT
Exhibit
10.9 - Prendeville Change in Control Severance Agreement
This
Change in Control Severance Agreement (the “Agreement”) is made and entered into
as of this 29th day of June, 2005 (the “Effective Date”), by and between SEMCO
Energy Inc., a Michigan corporation (the “Company”), and Xxxx X. Xxxxxxxxxxx
(“Executive”).
WHEREAS,
among other things, the Company believes that, in the event a transaction is
proposed that would, if consummated, constitute a Change in Control (as defined
below), it is important to the Company that Executive be induced to remain
in
his position and focused on pursuing the best interests of the Company and
its
shareholders and not be distracted by personal uncertainties and risks created
by the prospect of such a Change in Control;
WHEREAS,
the Company desires to employ, or continue to employ, Executive, on the terms
and conditions set forth in this Agreement, which is intended to supersede
all
prior such agreements and understandings between Executive and the Company
with
respect to the subject-matter hereof;
NOW,
THEREFORE, in consideration of the compensation and other benefits of
Executive’s employment and, if applicable, Executive’s continued employment, by
the Company, and the mutual covenants and agreements hereinafter set forth,
Executive and the Company agree as follows:
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1.
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Employment.
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1.1. Executive
is employed by the Company as Vice President and Deputy General Counsel as
of
the Effective Date, and Executive hereby accepts and, if applicable, continues
such employment, upon the terms and conditions hereinafter set forth. Executive
shall report to the Senior Vice President and General Counsel and have such
functions, authority, duties and responsibilities as are customarily given
to
persons in such positions at a company with publicly-traded
securities.
1.2. Executive
agrees that, throughout Executive’s employment with the Company, Executive will
(i) faithfully render such services as may be reasonably delegated to, or
required of, Executive by the Company, (ii) and devote Executive’s entire
business time, best efforts, ability, skill and attention, in good faith, to
the
Company’s business, and (iii) follow and act in accordance with the rules,
policies, and procedures of the Company. Executive shall serve on a full-time
basis; provided, however, that it shall not be a breach of this Agreement for
Executive to serve on corporate, industry trade group, civic or charitable
boards or committees or to engage in other activities, with the consent of
the
President and Chief Executive Officer and so long as such activities do not
materially interfere with the performance of Executive’s duties and
responsibilities to the Company.
2. Employment
“At Will”.
Executive and the Company agree that, except as otherwise provided herein with
respect to Executive’s rights upon a Change in Control, Executive’s employment
with the Company is “at will” and is not for any specified term.
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3.
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Certain
Definitions.
For purposes of this Agreement, the following definitions shall
apply:
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3.1. “Change
in Control” shall mean:
3.1.1. the
direct or indirect sale, lease, exchange or other transfer of all or
substantially all of the assets of the Company to any Person or entity or group
of Persons or entities acting in concert as a partnership or other group (a
“Group of Persons”) (other than a Person described in clause (i) of the
definition of Affiliate);
3.1.2. the
consummation of any consolidation or merger of the Company with or into another
corporation with the effect that the stockholders of the Company immediately
prior to the date of the consolidation or merger hold less than 51% of the
combined voting power of the outstanding voting securities of the surviving
entity of such merger or the corporation resulting from such consolidation
ordinarily having the right to vote in the election of directors (apart from
rights accruing under special circumstances) immediately after such merger
or
consolidation;
3.1.3. the
stockholders of the Company shall approve any plan or proposal for the
liquidation or dissolution of the Company;
3.1.4. a
Person
or Group of Persons acting in concert as a partnership, limited partnership,
syndicate or other group shall, as a result of a tender or exchange offer,
open
market purchases, privately negotiated purchases or otherwise, have become
the
direct or indirect beneficial owner (within the meaning of Rule 13d-3 under
the
Securities Exchange Act of 1934, as amended (the “Exchange Act”)) (“Beneficial
Owner”) of securities of the Company representing 30% or more of the combined
voting power of the then outstanding securities of the Company ordinarily (and
apart from rights accruing under special circumstances) having the right to
vote
in the election of directors; or
3.1.5. a
Person
or Group of Persons, together with any Affiliates thereof, shall succeed in
having a sufficient number of its nominees elected to the Board of Directors
such that such nominees, when added to any existing director remaining on the
Board of Directors after such election who is an Affiliate of such Person or
Group of Persons, will constitute a majority of the Board of
Directors.
3.1.6. For
purposes of this definition, “Affiliate” of any specified Person shall mean (i)
any other Person which, directly or indirectly, is in control of, is controlled
by or is under common control with such specified Person or (ii) any other
Person who is a director or officer (A) of such specified Person, (B) of any
subsidiary of such specified Person or (C) of any Person described in clause
(i)
above or (iii) any Person in which such Person has, directly or indirectly,
a
five (5) percent or greater voting or economic interest or the power to control.
For the purposes of this definition, “control” of a Person means the power,
direct or indirect, to direct or cause the direction of the management or
policies of such Person whether through the ownership of voting securities,
or
by contract or otherwise; and the terms “controlling” and “controlled” have
meanings correlative to the foregoing.
3.1.7. “Person”
shall mean any individual, corporation, partnership, joint venture, association,
joint-stock company, trust, unincorporated organization, government or any
agency or political subdivision thereof or any other entity within the meaning
of Section 13(d)(3) or 14(d)(2) of the Exchange Act.
3.1.8. “Voting
power” shall mean the voting power of all securities of a Person then
outstanding generally entitled to vote for the election of directors of the
Person (or, where appropriate, for the election of persons performing similar
functions).
3.1.9. Nothwithstanding
the definitions set forth in this Section 3.1, the Board of Directors may
determine, after a review of the facts and circumstances surrounding a
particular transaction, in its sole discretion, that consummation of the
transaction shall constitute a Change in Control for purposes of this
Agreement.
3.2. “Base
Salary” shall mean the base cash compensation paid to Executive.
3.3. “Target
Annual Bonus” shall mean a percentage applied to Executive’s Base Salary that
produces an annual lump sum bonus payable to Executive in
accordance with the Company’s then-existing Short-Term Incentive Plan (the
“STIP”). The STIP shall afford Executive a reasonable opportunity to earn the
Target Annual Bonus and, depending on his performance and the financial
performance of the Company, such lesser or greater annual lump sum payments
as
may be awarded under the STIP.
3.4. “Long-Term
Incentive Award Target” shall mean a percentage applied to Executive’s Base
Salary that produces an annual target for grants to the Executive under
the
Company's then-existing Long-Term Incentive Plan (the “LTIP”).
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4.
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Termination
of Employment.
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4.1. Prior
to
the consummation of a transaction constituting a Change in Control and subject
to Section 4.3.2 hereof, either Executive or the Company may terminate
Executive’s employment relationship at any time, with or without reason therefor
or notice thereof.
4.2. In
the
event that a transaction constituting a Change in Control has been consummated
within the 24 months preceding such termination, Executive’s employment
relationship may be terminated by the Company for the following
reasons:
4.2.1. Termination
Due to Death.
Executive’s employment shall be terminated immediately upon the death of the
Executive.
4.2.2. Termination
Due to Disability.
If the
Company determines, in good faith, that the Disability (as defined below) of
Executive has occurred, it may give Executive written notice of its intention
to
terminate Executive’s employment. In such event, Executive’s employment shall
terminate effective on the 30th
day
after receipt of such notice by Executive (the “Disability Effective Date”), if
, within 30 days after such receipt, Executive shall not have returned to the
performance of his essential functions, with or without reasonable
accommodation. For purposes of this Agreement, “Disability” shall mean the
inability of Executive to perform a material portion of his duties for 180
consecutive days as a result of incapacity due to a mental or physical
condition, which is determined to be total and permanent by a physician selected
by the Company.
4.2.3. Termination
for Cause.
The
Company may terminate Executive’s employment for Cause. For the purposes of this
Agreement, “Cause” shall mean:
4.2.3.1 Executive’s
continued failure or inability to perform any material duties reasonably
assigned to Executive (other than any such failure resulting from Executive’s
death or Disability) or Executive’s substantial performance deficiencies, after
(i) Executive is given a written demand by the Board of Directors identifying
the manner in which the Company believes (a) Executive has not performed such
duties or, as applicable, (b) the reasons for finding Executive’s performance to
be deficient, and (ii) Executive’s subsequent failure to (a) cure or (b)
otherwise address, to the reasonable satisfaction of the Board of Directors,
the
matters set forth in such written demand within 60 days; or
4.2.3.2 a
material breach of this Agreement by Executive; or
4.2.3.3 Executive’s
commission of fraud against the Company or his engaging in willful misconduct
which is materially injurious to the Company, monetarily or otherwise;
or
4.2.3.4 Executive’s
willful misconduct involving a third party or conviction of a felony or
submission of a guilty or nolo contendere plea by Executive with respect
thereto.
4.2.3.5 For
purposes of this definition, no act or omission on Executive’s part shall be
considered “willful” unless done or omitted to be done by Executive in bad
faith, recklessly, or in the absence of a reasonable belief that Executive’s act
or omission was in the best interests of the Company.
4.2.4 Termination
without Cause.
The
Company may terminate Executive’s employment for any reason not amounting to
Cause, upon not less than 60 days’ prior written notice to
Executive.
4.3. In
the
event that a transaction constituting a Change in Control has been consummated
within the 24 months preceding such termination, Executive’s employment
relationship may be terminated by Executive for the following
reasons:
4.3.1. Termination
by Executive with Good Reason.
Executive’s employment may be terminated by Executive with Good Reason. For the
purposes of this Agreement, “Good Reason” shall mean any of the following
actions taken without Executive’s consent, in writing:
4.3.1.1 the
assignment to Executive of any duties that are materially inconsistent with
Executive’s position (including status, office, titles and reporting
relationships), functions, authority, duties or responsibilities as contemplated
by this Agreement, or any other action by the Company which results in a
material diminution in Executive’s position, functions, authority, duties, or
responsibilities, excluding an isolated, insubstantial and inadvertent action
not taken in bad faith and which is remedied by the Company within 30 days
after
receipt of written notice thereof given by Executive; or
4.3.1.2 a
material breach of this Agreement by the Company; or
4.3.1.3 a
reduction in Executive’s Base Salary, Target Annual Bonus, or Long-Term
Incentive Award Target; or
4.3.1.4 the
relocation of the Company’s headquarters by more than 50 miles or the assignment
of Executive to a work location that is more than 50 miles from his work
location (as determined by his work location immediately preceding the
announcement of the transaction which, when consummated, constituted the Change
in Control referred to in this Section 4.3); provided, however, that to the
extent reasonably required and substantially consistent with such travel
immediately prior to consummation of the transaction constituting a Change
in
Control, travel by the Executive on Company business shall not be deemed a
change in his work location; or
4.3.1.5 the
failure of any successor to the Company to adopt and agree to be bound by this
Agreement, in writing, and thereafter honor the Company’s obligations
hereunder.
4.3.2 Anything
in this Agreement to the contrary notwithstanding, if (i) a transaction
constituting a Change in Control is consummated, (ii) Executive’s employment
with the Company is terminated within one year prior to the date on which such
consummation occurred, and (iii) it is reasonably demonstrated by the Executive
that such termination of employment (a) was at the request of a third party
which had taken, or subsequently took, steps reasonably calculated to effect
a
Change in Control, or (b) otherwise arose in connection with or anticipation
of
a transaction which, if consummated, would constitute a Change in Control,
then,
for purposes of this Agreement and notwithstanding any other action taken by
the
Company or Executive (including the execution of a general release of claims),
Executive’s termination shall be deemed to have occurred with Good Reason after
consummation of a transaction constituting a Change in Control.
4.3.3 Termination
by Executive without Good Reason.
Executive’s employment may be terminated by Executive, for any reason not
amounting to Good Reason, upon not less than 60 days’ prior written notice to
the Company.
4.4. Notice
of Termination after Change in Control.
Any
termination of Executive’s employment within 24 months after consummation of a
transaction constituting a Change in Control (other than by death) shall be
communicated to the other party by Notice of Termination given in accordance
with this section. For purposes of this Agreement, a “Notice of Termination”
means a written notice which (i) states the specific termination provision
in
this Agreement relied upon, (ii), to the extent applicable, sets forth in
reasonable detail the facts and circumstances claimed to provide a basis for
termination of Executive’s employment under the provision so indicated, and
(iii) if the Date of Termination (as defined below) is other than the date
of
receipt of such notice, specifies the termination date.
4.5. Date
of Termination.
“Date
of Termination” means: (i) if Executive’s employment is terminated by reason of
death or Disability, the Date of Termination shall be the date of death of
Executive or the Disability Effective Date, as the case may be; (ii) if
Executive’s employment is terminated by the Company for Cause or by Executive
with Good Reason, the date of receipt of the Notice of Termination or any later
date specified therein, as the case may be; (iii) if Executive’s employment is
terminated by the Company without Cause or is terminated by Executive without
Good Reason, the Date of Termination shall be the date specified in the notice,
which must be at least 60 days after the notice is given.
4.6. Obligations
upon Termination after Change in Control.
Upon
Executive’s termination within 24 months after consummation of a transaction
constituting a Change in Control, this Agreement shall terminate and all rights
and obligations of the parties hereunder shall cease, except (i) as otherwise
expressly provided herein, and (ii) for the following:
4.6.1. In
any
event, Executive shall be entitled to receive his Base Salary through the Date
of Termination to the extent not theretofore paid, any accrued vacation pay,
and
to the extent not theretofore paid or provided, any other amounts or benefits
(including, without limitation, vested benefits) required to be paid or provided
under any plan, program, policy or agreement (including, without limitation,
to
the extent it has been earned for the preceding year but not paid, Executive’s
annual lump sum bonus).
4.6.2. If
Executive’s employment is terminated by death or Disability, by the Company with
Cause, or by the Executive without Good Reason, no further payments shall be
due
and owing to Executive hereunder.
4.6.3. If
Executive’s employment is terminated by the Company without Cause or by the
Executive with Good Reason, then Executive shall thereafter receive (i) an
amount equal to 2 times
the sum
of (a) his Base Salary plus
(b) his
Target Annual Bonus, payable in a lump sum within 60 days following the Date
of
Termination, together with the pro rata portion of the annual lump sum bonus
earned by Executive for the year in which his employment is terminated,
calculated based on his Target Annual Bonus and without any other adjustment
for
Executive’s performance or otherwise.
4.6.4. If
Executive’s employment is terminated by the Company without Cause or by
Executive with Good Reason, then the Company shall thereafter continue medical
and other welfare benefits coverages for Executive and Executive’s family, which
shall be substantially the same as those which would have been provided to
them
under the plans, programs, practices and policies in effect at the time of
his
termination, as if Executive’s employment had not been terminated, for 2 years;
provided, however, that if Executive becomes re-employed with another employer
and is eligible to receive substantially similar medical and other welfare
benefits coverages under another employer’s plans, at substantially similar cost
to Executive, then the Company-provided medical and other welfare benefit
coverages described herein shall be deemed secondary to such other medical
and
other welfare benefit coverages.
4.6.5. Executive
shall be entitled to continue, at his expense, medical or other welfare benefits
for Executive and Executive’s family, as provided under state or federal law,
after the medical and other welfare benefits coverages provided under Section
4.6.4 end.
4.6.6. If
Executive’s employment is terminated by the Company without Cause or by
Executive with Good Reason, the Company shall pay the actual cost of
outplacement services for Executive up to a total of $10,000.
4.6.7. Executive’s
LTIP awards shall vest as provided in the LTIP.
4.6.8. As
a
condition of receiving any payments or benefits pursuant to Sections 4.6.3,
4.6.4, or 4.6.6, Executive shall execute a general release of claims (including,
without limitation, any claims arising under federal, state, or local law,
rules, regulations, or orders related to the termination of Executive’s
employment and this Agreement) substantially in the form attached hereto at
Exhibit A.
4.6.9. Executive
shall not be required to mitigate the amount of any payment or benefit provided
hereunder by seeking other employment or otherwise. Except as provided herein,
the amount of any such payment or benefits hereunder shall not be reduced by
any
compensation earned, payment made, or benefits received by Executive as a result
of obtaining such employment or engaging in any other other
activity.
4.6.10. The
termination of Executive’s employment pursuant to this Section 4 or otherwise
shall not terminate or otherwise affect the rights and obligations of the
parties pursuant to Sections 5 through 15.
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5.
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Confidential
Information.
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5.1. Both
during his employment and for a period of 2 years following termination of
his
employment within 24 months after consummation of a transaction constituting
a
Change in Control, Executive shall exercise due care to protect from disclosure
all secret or confidential information, knowledge or data relating to the
Company, its businesses and strategic plans, possessed or known by or disclosed
or made available to Executive during his employment and which shall not be
or
have become public knowledge (other than as a result of a breach of this
Agreement).
5.2. For
a
period of 2 years following termination of his employment within 24 months
after
consummation of a transaction constituting a Change in Control, Executive shall
not, without the prior written consent of the Company, communicate or divulge
any such secret or confidential information, knowledge or data to any other
person, except as required by law; provided that, in any such case, Executive
shall give the Company prompt prior written notice of such legal requirement
so
that the Company may seek, at its sole expense, a protective order or other
appropriate remedy to protect such information from disclosure or to limit
such
disclosure.
5.3. Nothing
in Sections 5.1 or 5.2 hereof shall be deemed to modify in any way Executive’s
professional obligations with respect to maintaining the confidentiality of
information learned in connection with his representing and advising the Company
as its counsel.
6. Post-Termination
Restrictions.
Executive acknowledges that the Company (i) has spent substantial money, time
and effort to develop secret or confidential information, knowledge or data
relating to the Company, its businesses and strategic plans, possessed or known
by or disclosed or made available to Executive during his employment, and (ii)
is employing Executive with the understanding that, following the termination
of
his employment within 24 months after consummation of a transaction constituting
a Change in Control, Executive will not put himself in a position in which
the
Company’s ability to execute its strategic plan might be compromised.
Accordingly, Executive agrees that during his employment at the Company and
for
2 years following the termination of his employment within 24 months after
consummation of a transaction constituting a Change in Control, irrespective
of
the reasons for or circumstances surrounding that termination, Executive shall
not, directly or indirectly (whether as owner, partner, consultant, employee
or
otherwise), unless the Company consents thereto in writing:
6.1. cause
or
attempt to cause any person or entity to divert, terminate, limit, modify or
fail to enter into any existing or potential business relationship with the
Company; or
6.2. induce
or
attempt to induce any employee, consultant or advisor of the Company to leave
his or her position with the Company, change his relationship with the Company,
or accept employment or an affiliation involving a Competing Activity. For
purposes of this Agreement, a “Competing Activity” is any person or entity which
is engaged in business in the States of Michigan and Alaska that is competitive
with any business in which the Company is engaged at the time of the Executive’s
termination, or which is, on that date, is engaged in a business that is
competitive with any business described in the Company’s strategic plan approved
by the Board of Directors.
6.3. Nothing
in Sections 6.1 and 6.2 hereof shall be deemed to modify in any way Executive’s
professional obligations with respect to his ability to represent and advise
clients whose interests are, or may be, adverse to those of the
Company.
7. Acknowledgment
Regarding Restrictions.
Executive acknowledges that the restraints set forth in Sections 5 and 6 (both
separately and in total) are reasonable and enforceable in view of the Company’s
legitimate interests in protecting its secret or confidential information,
knowledge or data relating to the Company, its businesses and strategic plans,
those strategic plans themselves, and the Company’s goodwill
generally.
8. No
Waiver of Rights.
The
Company’s failure to enforce at any time any of the provisions of this Agreement
or to require at any time performance by Executive of any of the provisions
hereof shall in no way be construed to be a waiver of such provisions or to
affect either the validity of this Agreement, or any part hereof, or the right
of the Company thereafter to enforce each and every provision in accordance
with
its terms.
9. Executive’s
Duty to Provide Information on Request; Company’s Right to Injunctive Relief;
Tolling.
9.1. As
reasonably requested by the Company, for a period of 2 years after the
termination of his employment within 24 months after consummation of a
transaction constituting a Change in Control, Executive shall report in
reasonable detail to the Company, orally or in writing, with respect to any
matter reasonably related to his compliance with his obligations under Sections
5 and 6 hereof, including (without limitation) his (i) knowledge or actions
with
respect to the protection from disclosure of secret or confidential information,
knowledge or data relating to the Company, its businesses and strategic plans,
possessed or known by or disclosed or made available to Executive during his
employment, (ii) knowledge or actions with respect to any person or entity
involved in any existing or potential business relationship with the Company,
(iii) knowledge or actions concerning any employee, consultant or advisor of
the
Company and their relationship with the Company or any person engaged in any
Competing Activity; and (iv) knowledge or actions with respect to his compliance
with his professional obligations.
9.2. In
the
event of a breach or threatened breach of any of Executive’s obligations under
the terms of Sections 5 or 6 hereof, the Company shall be entitled, in addition
to any other legal or equitable remedies it may have in connection therewith
(including any right to damages that it may suffer), to temporary, preliminary
and permanent injunctive relief restraining such breach or threatened breach.
Executive acknowledges that the harm which might result to the Company as a
result of any noncompliance by Executive with any of the provisions of Sections
5 or 6 would be irreparable. Executive agrees that if there is a question as
to
the enforceability of any of the provisions of Sections 5 or 6 hereof, Executive
will not engage in any conduct inconsistent with or contrary to the obligations
set forth therein until after any such question has been resolved by a final
judgment of a court of competent jurisdiction, which, insofar as practicable
under the circumstances, shall be secured on an expedited basis. Executive
and
the Company agree that the running of the periods set forth in Section 6 hereof
shall be tolled during any period of time in which Executive violates the
obligations set forth therein.
10. Judicial
Enforcement.
If any
provision of this Agreement is adjudicated to be invalid or unenforceable under
the applicable law in any jurisdiction, the validity or enforceability of the
remaining provisions thereof shall be unaffected. To the extent that any
provision of this Agreement is adjudicated to be invalid or unenforceable
because it is overbroad, that provision shall not be void but rather shall
be
limited only to the extent required by applicable law and enforced as so
limited. Executive and the Company acknowledge that this provision is reasonable
in view of their respective interests.
11. Executive
Representations.
Executive represents that the execution and delivery of the Agreement and
Executive’s employment by the Company do not breach any previous employment
agreement or other contractual obligations of Executive with a third-party.
Executive further agrees to disclose, during the 2 years following the
termination of Executive’s employment with the Company within 24 months after
consummation of a transaction constituting a Change in Control, the substance
of
the terms of Sections 5, 6, 7, and 9 of this Agreement to any potential future
employer, joint venturer, contractor, partner, or any other person who may
be
directly affected by such provisions.
12. Executive
Covenant.
Following his employment with the Company, to the extent the Company reasonably
so requests, Executive agrees to cooperate with the Company and its counsel
in
the contest or defense of, and to provide any testimony and access to his books
and records in connection with, any action, arbitration, audit, hearing,
investigation, litigation or suit involving or relating to any action, activity,
circumstance, condition, conduct, event, fact, failure to act, incident,
occurrence, plan, practice, situation, status or transaction involving the
Company while he was employed by the Company. The Company shall reimburse
Executive for all reasonable expenses incurred by Executive in connection with
providing such cooperation. For its part, the Company shall (i) make every
reasonable effort to arrange for such cooperation to be provided by Executive
at
mutually-convenient times and places and otherwise in a manner that does not
interfere unreasonably with Executive’s employment, search for employment, or
retirement, and (ii) compensate Executive reasonably for any professional
services rendered (except in a situation where Executive is providing testimony
in a court of law or administrative proceeding on behalf of the Company, in
which case Executive shall only receive legally mandated witness fees and
reimbursement of his reasonable expenses).
13. Amendments,
Entire Agreement.
No
modification, amendment, or waiver of any of the provisions of this Agreement
shall be effective unless such modification, amendment, or waiver is in writing
specifically referring hereto, and signed by the parties hereto. This Agreement
supersedes all prior agreements and understandings between Executive and the
Company with respect to the subject-matter hereof, except previously-executed
LTIP-related agreements between Executive and the Company.
14. Assignments.
This
Agreement shall be freely assignable by the Company to, and shall inure to
the
benefit of and be binding upon, the Company, its successors, assigns and any
other entity which shall succeed to the business presently being conducted
by
the Company. As a contract for personal services, neither this Agreement nor
any
rights hereunder shall be assigned by Executive.
15. Choice
of Forum and Governing Law; Attorneys’ Fees.
15.1. Any
litigation involving this Agreement shall be filed and conducted in the state
or
federal courts in Michigan; and (ii) the Agreement shall be interpreted in
accordance with and governed by the laws of the State of Michigan, without
regard to any conflict of law principles thereof.
15.2. The
Company shall promptly pay all legal fees and expenses incurred by Executive
in
seeking to obtain any benefits or payments under, or otherwise enforce, this
Agreement, in connection with a Change in Control. Such payments shall be made
to Executive within 15 days after Executive’s submission of a written request
therefor; provided, however, that Executive shall provide supporting
documentation for the fees and expenses for which reimbursement is sought as
the
Company may reasonably require. In the event that a court of competent
jurisdiction shall determine that Executive has pursued such claims for benefits
or payments under, or enforcement of, this Agreement in bad faith, or advanced
frivolous claims in connection therewith, Executive shall promptly repay all
or
part of such attorneys’ fees and expenses, as such court shall determine are
directly attributable to such bad faith or frivolous claims.
16. Headings.
Section
headings are provided in this Agreement for convenience only and shall not
be
deemed to alter the content of such sections.
17. Execution
of Agreement.
This
Agreement may be executed in one or more counterparts, each of which will be
deemed to be an original copy of this Agreement and all of which, when taken
together, will be deemed to constitute one and the same agreement. The exchange
of copies of this Agreement and of signature pages by facsimile transmission
shall constitute effective execution and delivery of this Agreement as to the
parties and may be used in lieu of the original Agreement for all purposes.
Signatures of the parties transmitted by facsimile shall be deemed to be their
original signatures for all purposes.
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
as
of the day and year first above written.
By:
/s/Xxxxxx
X. Xxxxxxxxx, Xx.
Name:
Xxxxxx X. Xxxxxxxxx, Xx.
Title:
President and Chief Executive Officer
EXECUTIVE
/s/Xxxx
X. Xxxxxxxxxxx
EXHIBIT
A
FORM
OF GENERAL RELEASE OF CLAIMS
For
good
and valuable consideration set forth in the agreement (the “Agreement”) between
[INSERT NAME OF EMPLOYEE] (“Employee”) and SEMCO Energy, Inc. (together with its
subsidiaries, affiliates, and successors and the directors, officers, employees,
agents thereof, the “Company”), the sufficiency of which is hereby acknowledged,
Employee and the Company agree as follows:
1. General
Release of Claims.
Except
as expressly provided in the Agreement, Employee, for himself and him
dependents, heirs, executors, administrators, representatives, and assigns,
irrevocably releases and forever discharges the Company of and from, and agrees
to indemnify and hold the Company harmless from, any and all manner of claims,
suits, actions, causes of action, demands, charges, complaints, or obligations
of any sort whatsoever (including claims for costs and attorneys’ fees), direct
or indirect, fixed or contingent, known and unknown, in law or in equity, which
he ever had, now has, or may have against the Company arising in any way
whatsoever from or in connection with his employment at, or the termination
of
his employment with, the Company. Without limiting the generality of the
foregoing, it is understood and agreed that this General Release of Claims
specifically includes any and all claims for: breach of express or implied
contract or covenant; violation of any federal, state or local statute, rule,
regulation, or order (including the Equal Pay Act of 1963, Title VII of the
Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967,
the
Americans with Disabilities Act of 1990, the Xxxxxxx-Xxxxxx Civil Rights Act,
and the Michigan Persons with Disabilities Act); tort; and breach of any
statutory or common law duties or doctrines.
2. Certain
Matters Not Covered by General Release of Claims. This
General Release of Claims does not, and is not intended to, release, discharge
or in any way remove or otherwise limit or affect any claims, suits, actions,
causes of action, demands, charges, complaints, or obligations of any sort
whatsoever (including claims for costs and attorneys’ fees) arising in
connection with or under or relating in any way to either party’s performance of
their obligations under the Agreement.
3. No
Admission of Liability.
Neither
the terms nor the existence of the Agreement or the General Release of Claims,
or the Company’s seeking Employee’s execution of the General Release of Claims,
shall be construed as an admission of liability by the Company, including that
it violated any federal, state or local statute, regulation, rule, or order;
breached any contract or covenant; committed any tort; breached any statutory
or
common law duty or doctrine; or otherwise took, or failed to take, any action
or
committed any offense that is actionable in any way by Employee.
4. Use
of Counterparts Authorized.
The
General Release of Claims may be executed in counterparts; provided, however,
that each party to the General Release of Claims shall provide a duly-executed
copy of it to the other party to the General Release of Claims.
5. Definition.
In the
General Release of Claims, the words “include,”“includes,” and “including”
shall mean include, includes, or including without limitation.
6. Parties
Are Acting Freely, on an Informed Basis, with the Opportunity to Seek the Advice
of Counsel.
Employee
and the Company each acknowledge that they: are acting of their own free will;
fully understand both the Agreement and the General Release of Claims; and
have
had the opportunity to seek the advice of an attorney about these important
legal documents affecting their rights.
7. Governing
Law and Venue.
The
Agreement and the General Release of Claims shall be governed and construed
in
accordance with the laws of the State of Michigan, without regard to the
conflict of laws provisions thereof. Any action related in any way whatsoever
to
the Agreement or General Release of Claims shall be brought in a court of
competent jurisdiction in the State of Michigan.
8. Time
to Consider General Release of Claims; Right to Revoke; Effect of
Revocation.
Employee
acknowledges that: (i) he may consider whether to execute the General Release
of
Claims for up to 21 days; and (ii), after executing the General Release of
Claims, he may revoke it within 7 days, by giving notice, in writing, to the
Company’s General Counsel, c/o SEMCO Energy, Inc., 0000 Xxxx Xxx Xxxxxx Xxxx -
Xxxxx 000, Xxxx, Xxxxxxxx 00000. If Employee revokes the General Release of
Claims as provided herein, Employee shall promptly repay to the Company any
severance and related benefits paid to him under the Agreement.
9. Entire
Agreement.
The
Agreement and the General Release of Claims constitute the entire agreement
between Employee and the Company with respect to the subject-matter hereof.
They
acknowledge that they are not relying on any representations or statements
(written or oral) not contained therein.
