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EXHIBIT 10.22
ORANGE AND ROCKLAND UTILITIES, INC.
FORM OF SEVERANCE AGREEMENT
THIS AGREEMENT, effective this ___th day of _______, 19__ by
and between Orange and Rockland Utilities, Inc. (the "Company") and
_____________________ (the "Employee").
W I T N E S S E T H T H A T
WHEREAS, the Employee is an integral part of the Company's
management who participates in the decision making process relative to planning
and policy for the Company; and
WHEREAS, on January 3, 1991 the Board of Directors of the
Company determined that it would be in the best interests of the Company and its
shareholders to assure continuity in the management of the Company's
administration and operations in the event of a Change in Control by entering
into a severance agreement with the officers of the Company; and
WHEREAS, the Board of Directors of the Company approved the
hiring of the Employee as ______________ of the Company on _______, 19__; and
WHEREAS, the Company wishes to encourage the Employee to
continue his/her services with the Company for the period during and after an
actual or threatened Change in Control; and
NOW THEREFORE, it is hereby agreed by and between the parties
hereto as follows:
1. Definitions.
"Beneficial Owner" shall have the meaning set forth in Rule
13d-3 under the Exchange Act.
"Board" shall mean the Board of Directors of the Company.
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"Cause" shall mean (a) the Employee's conviction of a felony
or (b) the Employee's fraud or dishonesty which has resulted or is likely to
result in material economic damage to the Company, as determined in good faith
by a vote of 2/3 of the non-employee directors of the Company at a meeting of
the Board of Directors at which the Employee is provided an opportunity to be
heard.
"Change in Control" shall be deemed to have occurred if the
event set forth in any one of the following paragraphs shall have occurred:
(i) any Person is or becomes the Beneficial Owner,
directly or indirectly, of securities of the Company (not including in the
securities beneficially owned by such Person any securities acquired directly
from the Company or its affiliates other than in connection with the acquisition
by the Company or its affiliates of a business) representing 20% or more of
either the then outstanding shares of common stock of the Company or the
combined voting power of the Company's then outstanding securities; or
(ii) the following individuals cease for any reason
to constitute a majority of the number of directors then serving: individuals
who, on the date hereof, 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 the Company (as such
terms are used in Rule 14a-11 of Regulation 14A under the Exchange Act)) whose
appointment or election by the Board or nomination for election by the Company's
shareholders was approved 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
(iii) the shareholders of the Company approve a
merger or consolidation of the Company with any other corporation or approve the
issuance of voting securities of the Company in connection with a merger or
consolidation of the Company (or any direct or indirect subsidiary
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of the Company) pursuant to applicable stock exchange requirements, other than
(i) a merger or consolidation which would result in the voting securities of the
Company 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 the Company, at least 65% of the combined voting power
of the voting securities of the Company or such surviving entity or any parent
thereof outstanding immediately after such merger or consolidation, or (ii) a
merger or consolidation effected to implement a recapitalization of the Company
(or similar transaction) in which no Person is or becomes the Beneficial Owner,
directly or indirectly, of securities of the Company (not including in the
securities Beneficially Owned by such Person any securities acquired directly
from the Company or its affiliates other than in connection with the acquisition
by the Company or its affiliates of a business) representing 20% or more of
either the then outstanding shares of common stock of the Company or the
combined voting power of the Company's then outstanding securities; or
(iv) the stockholders of the Company approve a plan
of complete liquidation or dissolution of the Company or an agreement for the
sale or disposition by the Company of all or substantially all of the Company's
assets, other than a sale or disposition by the Company of all or substantially
all of the Company's assets to an entity, at least 65% of the combined voting
power of the voting securities of which are owned by Persons in substantially
the same proportions as their ownership of the Company immediately prior to such
sale.
Notwithstanding the foregoing, no "Change in Control"
shall be deemed to have occurred if there is consummated any transaction or
series of integrated transactions immediately following which the record holders
of the common stock of the Company immediately prior to such transaction or
series of transactions continue to have substantially the
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same proportionate ownership in an entity which owns all or substantially all of
the assets of the Company immediately following such transaction or series of
transactions.
"Exchange Act" shall mean the Securities Exchange Act
of 1934, as amended from time to time.
"Good Reason" shall mean a determination by the
Employee in good faith that there has been any (i) material change by the
Company of the Employee's functions, duties or responsibilities which change
would cause the Employee's position with the Company to become of less dignity,
responsibility, importance, prestige or scope including, without limitation, the
assignment to the Employee of duties and responsibilities inconsistent with his
positions; (ii) assignment or reassignment by the Company of the Employee
without the Employee's consent, to another place of employment more that 50
miles from the Employee's current place of employment; (iii) liquidation,
dissolution, consolidation or merger of the Company that has not been approved
by a majority of those members of the Board who were members of the Board prior
to the Change in Control, or transfer of all or substantially all of its assets,
other than a transaction or series of transactions in which the resulting or
surviving transferee entity has, in the aggregate, a net worth at least equal to
that of the Company and assumes this Agreement and all obligations and
undertakings of the Company hereunder; or (iv) reduction in the Employee's total
compensation or any component thereof; by written notice to the Company,
specifying the event relied upon for such termination and given at any time
within 6 months after the occurrence of such event.
"Person" shall have the meaning given in Section
3(a)(9) of the Exchange Act, as modified and used in Sections 13(d) and 14(d)
thereof, except that such term shall not include (i) the Company or any of its
affiliates (as defined in Rule 12b-2 promulgated under the Exchange Act), (ii) a
trustee or other fiduciary holding securities under an employee benefit plan of
the Company or any of its affiliates, (iii) an underwriter temporarily holding
securities
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pursuant to an offering of such securities, or (iv) a corporation owned,
directly or indirectly, by the stockholders of the Company in substantially the
same proportions as their ownership of stock of the Company.
2. Term.
This Agreement shall be effective as of the date above written
and shall continue thereafter for a period of 24 full calendar months following
the date of an occurrence of a Change in Control.
3. Severance Benefit.
a. In the event of any termination of the Employee's
employment hereunder at any time during the 24-month period immediately
following a Change in Control (x) by the Employee for Good Reason, or (y) by the
Company for any reason other than Cause, then, within 5 business days after any
such termination, the Company shall pay to the Employee or the estate of the
Employee as severance pay, a lump sum cash amount equal to three times the
Employee's "base amount" as defined and determined under section 28OG of the
Internal Revenue Code of 1986, as amended (the "Code"), less one dollar ("2.99
times the base amount").
b. For a period of 24 months (commencing with the
month in which termination of employment as described in paragraph 3a above
shall have occurred), the Employee shall be entitled to all benefits under the
Company's welfare benefit plans as if the Employee were still employed during
such period, at the same level of benefits as existed immediately prior to the
Change in Control, and if and to the extent that such benefits shall not be
payable or provided under any such plan, the Company shall pay or provide such
benefits on an individual basis. The benefits provided in accordance with this
paragraph 3b shall be secondary to any comparable benefits provided by another
employer.
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c. Notwithstanding anything else herein to the
contrary, to the extent that the Employee is entitled to receive severance
payments from another Company severance plan, arrangement or program, the
payments to be made pursuant to paragraph 3a hereof shall be correspondingly
reduced before implementation of paragraph e below, and, if necessary, the
Employee shall make an appropriate refund to the Employer without interest.
d. If Independent Tax Counsel shall determine that
the aggregate payments made to the Employee pursuant to paragraphs 3a and b
above and any other payments to the Employee from the Company which constitute
"parachute payments" as defined in section 28OG of the Internal Revenue Code of
1986, as amended (the "Code") (or any successor thereto) ("Parachute Payments")
would be subject to the excise tax imposed by section 4999 of the Code (the
"Excise Tax"), then the lump sum cash payment payable to the Employee under
paragraph 3a above shall be reduced to an amount and to the extent necessary so
that such payment would not be subject to the Excise Tax. [For Employees not
fully vested in the SERP: Notwithstanding the preceding sentence, in the event
of a Change in Control that occurs prior to [date fully vested in SERP], the
Employee shall be entitled to all payments under paragraphs 3a and b above and
any other Parachute Payments unless the total of such payments, after giving
effect to the Excise Tax, is less than the amount to which the Employee would
have been entitled under the preceding sentence.] For purposes of this paragraph
3e, "Independent Tax Counsel" shall mean a lawyer with expertise in the area of
executive compensation tax law, who shall be selected by the Employee and shall
be reasonably acceptable to the Company, and whose fees and disbursements shall
be paid by the Company.
e. If it is established pursuant to a final
determination of a court or a final Internal Revenue Service proceeding that,
notwithstanding the good faith of the Employee and the Company in applying the
terms of this Agreement, any part of the aggregate payments
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paid to the Employee under this Agreement constitutes an "excess parachute
payment" for purposes of sections 28OG and 4999 of the Code, then the amount
equal to the excess shall be deemed for all purposes to be a loan from the
Company to the Employee made on the date of receipt. The Employee shall have an
obligation to repay such loan to the Company within six months of demand,
together with interest thereon at the lowest applicable Federal rate (as defined
in section 1274(d) of the Code) from the date of the Employee's receipt until
the date of such repayment. If it is determined for any reason that the amount
described in paragraph a or b above in incorrectly calculated or reduced, the
Company shall pay to the Employee the increased amount, if any, necessary so
that, after such an adjustment, the Employee shall have received or be entitled
to receive the maximum payments that he may receive without any such payment
constituting an "excess parachute payment."
4. Source of Payments.
All payments provided for in paragraph 3 above shall be paid
in cash from the general funds of the Company; provided, however, that such
payments shall be reduced by the amount of any payments made to the Employee or
his or her dependents, beneficiaries or estate from any trust or special or
separate fund established by the Company to assure such payments. The Company
shall not be required to establish a special or separate fund or other
segregation of assets to assure such payments, and, if the Company shall make
any investments to aid it in meeting its obligations hereunder, the Employee
shall have no right, title or interest whatever in or to any such investments
except as may otherwise be expressly provided in a separate written instrument
relating to such investments. Nothing contained in this Agreement, and no action
taken pursuant to its provisions, shall create or be construed to create a trust
of any kind, or a fiduciary relationship, between the Company and the Employee
or any other person. To the extent that any person acquires a right to receive
payments from
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the Company such right shall be no greater than the right of an unsecured
creditor of the Company.
5. Litigation Expenses; Arbitration.
a. In the event of any litigation or other proceeding
between the Company and the Employee with respect to the subject matter of this
Agreement and the enforcement of rights hereunder, the Company shall reimburse
the Employee for all reasonable costs and expenses relating to such litigation
or other proceeding as they are incurred, including reasonable attorneys fees
and expenses, regardless of whether such litigation results in any settlement or
judgment or order in favor of any party; provided, however, that any claim or
action initiated by the Employee relating to this Agreement shall have been made
or brought after reasonable inquiry and shall be well grounded in fact and
warranted by existing law or a good faith argument for the extension,
modification, or reversal of existing law, and that it is not interposed for any
improper purpose, such as to harass or to cause unnecessary delay or needless
increase in the cost of litigation. The obligation of the Company under this
paragraph 5 shall survive the termination for any reason of this Agreement
(whether such termination is by the Company, by the Employee, upon the
expiration of this Agreement or otherwise).
b. In the event of any dispute or difference between
the Company and the Employee with respect to the subject matter of this
Agreement and the enforcement of rights hereunder, the Employee may, in his or
her sole discretion by notice to the Company, require such dispute or difference
to be submitted to arbitration. The arbitrator or arbitrators shall be selected
by agreement of the parties or, if they cannot agree on an arbitrator or
arbitrators within 30 days after the Employee had notified the Company of his or
her desire to have the question settled by arbitration, then the arbitrator or
arbitrators shall be selected by the American Arbitration Association (the
"AAA") in New York, New York upon the application of the Employee. The
determination reached in such arbitration shall be final and binding on both
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parties without any right of appeal or further dispute. Execution of the
determination by such arbitrator may be sought in any court of competent
jurisdiction. The arbitrators shall not be bound by judicial formalities and may
abstain from following the strict rules of evidence and shall interpret this
Agreement as an honorable engagement and not merely as a legal obligation.
Unless otherwise agreed by the parties, any such arbitration shall take place in
New York, New York, and shall be conducted in accordance with the Rules of AAA.
6. Income Tax Withholding.
The Company may withhold from any payments made under this
Agreement all federal, state, city or other taxes as shall be required pursuant
to any law or governmental regulation or ruling.
7. Entire Understanding.
This Agreement contains the entire understanding between the
Company and the Employee with respect to the subject matter hereof, i.e.,
benefits payable to the Employee upon termination of employment following a
Change in Control, and supersedes any prior severance agreement between the
Company and the Employee, except that this Agreement shall not affect or operate
to reduce any benefit or compensation inuring to the Employee of any kind
elsewhere provided and not expressly provided for in this Agreement.
8. Severability.
If, for any reason, any one or more of the provisions or part
of a provision contained in this Agreement shall be held to be invalid, illegal
or unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provision or part of a provision of this Agreement
not held so invalid, illegal or unenforceable, and each other provision or part
of a provision shall to the full extent consistent with law continue in full
force and effect. If this Agreement is held invalid or cannot be enforced, then
to the full extent
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permitted by law any prior agreement between the Company and the Employee shall
be deemed reinstated as if this Agreement had not been executed.
9. Consolidation, Merger, or Sale of Assets.
If the Company consolidates or merges into or with, or
transfers all or substantially all of its assets to, another corporation with a
net worth at least equal to that of the Company and which assumes this Agreement
and all obligations and undertakings of the Company hereunder, the term "the
Company," as used herein shall mean such other corporation and this Agreement
shall continue in full force and effect.
10. Notices.
All notices, requests, demands and other communications
required or permitted hereunder shall be given in writing and shall be deemed
to have been duly given if delivered or mailed, postage prepaid, first class,
if to the Employee to the address shown in the personnel records of the
Company and, if to the Company, as follows:
Orange and Rockland Utilities, Inc.
Xxx Xxxx Xxxx Xxxxx
Xxxxx Xxxxx, Xxx Xxxx 00000
Attention: Vice President and General Counsel
or to such other address as either party shall have previously specified in
writing to the other.
11. No Attachment.
Except as required by law, no right to receive payments
under this Agreement shall be subject to anticipation, commutation,
alienation, sale assignment, encumbrance, charge, pledge, or hypothecation or
to execution, attachment, levy, or similar process or assignment by operation
of law, and any attempt, voluntary or involuntary, to effect any such action
shall be null, void and of no effect.
12. Binding Agreement.
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This Agreement shall be binding upon, and shall inure to the
benefit of, the Employee and the Company and their respective permitted
successors and assigns.
13. Modification and Waiver.
This Agreement may not be modified or amended except by an
instrument in writing signed by the parties hereto. No term or condition of this
Agreement shall be deemed to have been waived, nor shall there be any estoppel
against the enforcement of any provision of this Agreement except by written
instrument signed by the party charged with such waiver or estoppel. No such
written waiver shall be deemed a continuing waiver unless specifically stated
therein, and each such waiver shall operate only as to the specific term or
condition waived and shall not constitute a waiver of such term or condition for
the future or as to any act other than that specifically waived.
14. Headings of No Effect.
The paragraph headings contained in this Agreement are included
solely for convenience of reference and shall not in any way affect the meaning
or interpretation of any of the provisions of this Agreement.
15. Governing Law.
This Agreement and its validity, interpretation, performance,
and enforcement shall be governed by the laws of the State of New York without
giving effect to the choice of law provisions in effect in such State.
IN WITNESS WHEREOF, the Company has caused this Agreement to
be executed by its officers thereunto duly authorized, and the Employee has
signed this Agreement, all effective as of the date first above written.
ORANGE AND ROCKLAND UTILITIES, INC.
By: ________________________________
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[EMPLOYEE]
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