EXHIBIT 10.15
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CHANGEOFCONTROL
EMPLOYMENT AGREEMENT
AGREEMENT by and between SEMCO Energy, Inc., a Michigan corporation (the
ACompany@), and Xxxxxx Xxxxxxx (the AExecutive@), dated as of June 1, 2001.
The Board of Directors of the Company (the ABoard@) has determined that it
is in the best interests of the Company and its shareholders to assure that the
Company will have the exclusive dedication of the Executive, notwithstanding the
possibility, threat or occurrence of a Change of Control (as defined below) of
the Company. The Board believes it is imperative to diminish the inevitable
distraction of the Executive by virtue of the personal uncertainties and risks
created by a pending or threatened Change of Control and to encourage the
Executive=s full attention and dedication to the Company currently and in the
event of any threatened or pending Change of Control, and to provide the
Executive with compensation and benefit arrangements upon a Change of Control
which ensure that the compensation and benefit expectations of the Executive
will be satisfied and which are competitive with those of other corporations.
Therefore, in order to accomplish these objectives, the Board had caused the
Company to enter into this Agreement.
NOW, THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:
1. Certain Definitions.
(a) The AEffective Date@ shall mean the first date during the
Change of Control Period (as defined in Section 1 (b)) on which a Change of
Control (as defined in Section 2) occurs. Anything in this Agreement to the
contrary notwithstanding, if a Change of Control occurs and if the Executive=s
employment with the Company is terminated within six months prior to the date on
which the Change of Control occurs, then for all purposes of this Agreement the
AEffective Date@ shall mean the date immediately prior the date of such
termination of employment.
(b) The AChange of Control Period@ shall mean the period
commencing on the date hereof and ending on the third anniversary of the date
hereof, provided, however, that commencing on the date one year after the date
hereof, and on each annual anniversary of such date (such date and each annual
anniversary thereof shall be hereinafter referred to as the ARenewal Date@),
unless previously terminated, the Change of Control Period shall be
automatically extended so as to terminate three years from such Renewal Date,
unless at least 60 days prior to the Renewal Date the Company shall give notice
to the Executive that the Change of Control Period shall not be so extended.
2. Change of Control. For the purpose of this Agreement, a AChange
ofControl@ shall mean:
(a) The acquisition by any individual, entity or group (within the
meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934,
as amended (the AExchange Act@)) (a APerson@) of beneficial ownership (within
the meaning of Rule 13d-3 promulgated under the Exchange Act) of 30% or more of
either (i) the then outstanding shares of common stock of the Company (the
AOutstanding Company Common Stock@) or (ii) the combined voting power of the
then outstanding voting securities of the Company entitled to vote generally in
the election of directors (the AOutstanding Company Voting Securities@),
provided, however, that for purposes of this subsection (a), the following
acquisitions shall not constitute a Change of Control: (i) any acquisition
directly from the Company, (ii) any acquisition by the Company, (iii) any
acquisition by any employee benefit plan (or related trust) sponsored or
maintained by the Company or any corporation controlled by the Company or (iv)
any acquisition by the Company or any corporation pursuant to a transaction
which complies with clauses (i), (ii) and (iii) of subsection (c) of this
Section 2; or
(b) Individuals who, as of the date hereof, constitute the Board
(the AIncumbent Board@) cease for any reason to constitute at least a majority
of the Board, provided, however, that any individual becoming a director
subsequent to the date hereof whose election, or nomination for election by the
Company=s shareholders, was approved by a vote of at least a majority of the
directors then comprising the Incumbent Board shall be considered as though such
individual were a member of the Incumbent Board, but excluding, for this
purpose, any such individual whose initial assumption of office occurs as a
result of an actual or threatened election contest with respect to the election
or removal of directors or other actual or threatened solicitation of proxies or
consents by or on behalf of a Person other than the Board, or any actual or
threatened tender offer for the voting securities of the Company, or
(c) Consummation of a reorganization, merger or consolidation or
sale or other disposition of all or substantially all of the assets of the
Company (a ABusiness Combination@), in each case, unless, following such
Business Combination, (i) all or substantially all of the individuals and
entities who were the beneficial owners, respectively, of the Outstanding
Company Common Stock and Outstanding Company Voting Securities immediately prior
to such Business Combination beneficially own, directly or indirectly, more than
50% of, respectively, the then outstanding shares of common stock and the
combined voting power of the then outstanding voting securities entitled to vote
generally in the election of directors, as the case may be, of the corporation
resulting from such Business Combination (including, without limitation, a
corporation which as a result of such transaction owns the Company or all or
substantially all of the Company=s assets either directly or through one or more
subsidiaries) in substantially the same proportions as their ownership,
immediately prior to such Business Combination of the Outstanding Company Common
Stock and Outstanding Company Voting Securities, as the case may be, (ii) no
Person (excluding any corporation resulting from such Business Combination or
any employee benefit plan (or related trust) of the Company or such corporation
resulting from such Business Combination) beneficially owns, directly or
indirectly, 30% or more of, the corporation resulting from such Business
Combination or the combined voting power of the then outstanding voting
securities of such corporation except to the extent that such ownership existed
prior to the Business Combination and (iii) at least a majority of the members
of the board of directors of the corporation resulting from such Business
Combination were members of the Incumbent Board at the time or the execution of
the initial agreement, or of the action of the Board, providing for such
Business Combination; or
(d) Approval by the shareholders of the Company of a complete
liquidation or dissolution of the Company; or
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(e) the sale of all or substantially all of the assets and
business of the Company generally or of SEMCO Energy Gas Company Division of the
Company (the Company=s Michigan gas utility).
3. Employment Period. The Company hereby agrees to continue the
Executive in its employ, and the Executive hereby agrees to remain in the employ
of the Company, subject to the terms and conditions of this Agreement, for the
period commencing on the Effective Date and ending on the later of the third
anniversary of such date or June 1,2006 (the AEmployment Period@).
4. Terms of Employment.
(a) Position and Duties.
(i) During the Employment Period, (A) the Executive=s
position (including status, offices, titles and reporting requirements),
authority, duties and responsibilities shall be at least commensurate in all
material respects with the most significant of those held, exercised and
assigned at any time during the 120-day period immediately preceding the
Effective Date and (B) the Executive=s services shall be performed at the
location where the Executive was employed immediately preceding the Effective
Date or at the Company=s Farmington Hills or Port Huron location or any office
or location less than 35 miles from such location.
(ii) During the Employment Period, and excluding any periods
of vacation and sick leave to which the Executive is entitled, the Executive
agrees to devote reasonable attention and time during normal business hours to
the business and affairs of the Company and, to the extent necessary to
discharge the responsibilities assigned to the Executive hereunder, to use the
Executive=s reasonable best efforts to perform faithfully and efficiently such
responsibilities. During the Employment Period it shall not be a violation of
this Agreement for the Executive to (A) serve on corporate, civic or charitable
boards or committees, (B) deliver lectures, fulfill speaking engagements or
teach at educational institutions and (C) manage personal investments, so long
as such activities do not significantly interfere with the performance of the
Executive=s responsibilities as an employee of the Company in accordance with
this Agreement. It is expressly understood and agreed that to the extent that
any such activities have been conducted by the Executive prior to the Effective
Date, the continued conduct of such activities (or the conduct of activities
similar in nature and scope thereto) subsequent to the Effective Date shall not
thereafter be deemed to interfere with the performance of the Executive=s
responsibilities to the Company.
(b) Compensation.
(i) Base Salary. During the Employment Period, the Executive
shall receive an annual base salary (AAnnual Base Salary@), which shall be paid
at a monthly rate, at least equal to Executive=s annual base salary immediately
prior to the Employment Period. During the Employment Period, the Annual Base
Salary shall be reviewed at least annually. Any increase in Annual Bass Salary
shall not serve to limit or reduce any other obligation to the Executive under
this Agreement. Annual Base Salary shall not be reduced after any such Increase
and the term Annual Base Salary as utilized in this Agreement shall refer to
Annual Base Salary as so increased. As used
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in this Agreement, the term Aaffiliated companies@ shall include any company
controlled by or under common control with the Company.
(ii) Incentive, Savings and Retirement Plans. During the
Employment Period, the Executive shall be (A) eligible for an annual incentive
bonus in an amount not to exceed sixty percent (60%) of the Executive=s Annual
Base Salary, in accordance with the Company=s Short Term Incentive Plan and
payable upon the attainment of specific targets as mutually agreed to annually
by the Executive and the Board, and (B) entitled to participate in the Company=s
Long Tenn Incentive Plan and all other incentive, savings and retirement plans,
practices, policies and programs applicable generally to other senior executives
of the company and its affiliated companies, but in no event shall such plans,
practices, policies and programs provide the Executive with incentive
opportunities (measured with respect to both regular and special incentive
opportunities, to the extent, if any, that such distinction is applicable),
savings opportunities and retirement benefit opportunities, in each case, less
favorable, in the aggregate, than the most favorable of those provided by the
Company and its affiliated companies for the Executive under such plans,
practices, policies and programs as in effect at any time during the 120-day
period immediately preceding the Effective Date or if more favorable to the
Executive, those provided generally at any time after the Effective Date to
other senior executives of the Company and its affiliated companies.
(iii) Welfare Benefit Plans. During the Employment Period,
the Executive and/or the Executive=s family, as the case may be, shall be
eligible for participation in and shall receive all benefits under welfare
benefit plans, practices, policies and programs provided by the Company and its
affiliated companies (including, without limitation, medical, prescription,
dental, disability, employee life, group life, accidental death and travel
accident insurance plans and programs) to the extent applicable generally to
other senior executives of the Company and its affiliated companies, but in no
event shall such plans, practices, policies and programs provide the Executive
with benefits which are less favorable, in the aggregate, than the most
favorable of such plans, practices, policies and programs in effect for the
Executive at any time during the 120-day period immediately preceding the
Effective Date or, if more favorable to the Executive, those provided generally
at any time after the Effective Date to other senior executives of the Company
and its affiliated companies.
(iv) Expenses. During the Employment Period, the Executive
shall be entitled to receive prompt reimbursement of all reasonable expenses
incurred by the Executive in accordance with the most favorable policies,
practices and procedures of the Company and its affiliated companies in effect
for the Executive at any time during the 120-day period immediately preceding
the Effective Date or, if more favorable to the Executive, as in effect
generally at any time thereafter with respect to other senior executives of the
Company and its affiliated companies.
(v) Office and Support Staff. During the Employment Period,
the Executive shall be entitled to an office or offices of a size and with
furnishings and other appointments, and to exclusive personal secretarial and
other assistance, at least equal to the most favorable of the foregoing provided
to the Executive by the Company and its affiliated companies at any time during
the 120-day period immediately preceding the Effective Date or, if more
favorable to the Executive, as provided generally at any time thereafter with
respect to other senior executives of the Company and its affiliated companies.
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(vi) Vacation. During the Employment Period, the Executive
shall be entitled to paid vacation in accordance with the most favorable plans,
policies, programs and practices of the Company and its affiliated companies as
in effect for the Executive at any time during the 120-day period immediately
preceding the Effective Date or, if more favorable to the Executive, as in
effect generally at any time thereafter with respect to other senior executives
of the Company and its affiliated companies.
(vii) Age 55 Retirement Benefit Bridge. The Executive has
been employed by Kansas City Power & Light Company (AKCPL@). Subject to the
provisions of Paragraph 6 of this Agreement, the Company will provide Executive
with an Incremental Monthly Pension benefit reflecting the difference between
(a) Executive=s projected KCPL pension at the KCPL early retirement date and (b)
the KCPL pension projected at the KCPL early retirement date based on employment
termination at May 31, 2001.
5. Termination of Employment.
(a) Death or Disability. The Executive=s employment shall
terminate automatically upon the Executive=s death during the Employment Period.
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 below), it may give to the Executive written notice in accordance with
Section 11(b) of this Agreement 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 ADisability 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. For purposes of this Agreement
ADisability@ shall mean the absence of the Executive from the Executive=s duties
with the Company on a full-time basis for 180 consecutive business days as a
result of incapacity due to mental or physical illness which is determined to be
total and permanent by a physician selected by the Company or its Insurers and
acceptable to the Executive or the Executive=s legal representative.
(b) Cause. The Company may terminate the Executive=s employment
during the Employment Period for Cause. For purposes of this Agreement, ACause@
shall mean:
(i) the willful and continued failure of the Executive to
perform substantially the Executive=s duties with the Company or one of its
affiliates (other than any such failure resulting from incapacity due to
physical or mental illness), after a written demand for substantial performance
is delivered to the Executive by the Board which specifically identifies the
manner in which the Board believes that the Executive has not substantially
performed the Executive=s duties, or
(ii) the willful engaging by the Executive in illegal conduct
or gross misconduct which is materially and demonstrably injurious to the
Company.
For purposes of this provision, no act or failure to act, on the part of the
Executive, shall be considered Awillful@ unless it is done, or omitted to be
done, by the Executive in bad faith or
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without reasonable belief that the Executive=s action or omission was in the
best interests of the Company. Any act, or failure to act, based upon authority
given pursuant to a resolution duly adopted by the Board or based upon 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 cessation of employment of the Executive shall not be deemed
to be for Cause unless and until there shall have been delivered to the
Executive a copy of a resolution duly adopted by the affirmative vote of not
less than three-quarters of the outside members of the Board at a meeting of the
Board called and held for such purpose (after reasonable notice is provided to
the Executive and the Executive is given an opportunity, together with counsel,
to be heard before the Board) finding that, in the good faith opinion of the
Board, the Executive is guilty of the conduct described in subparagraph (i) or
(ii) above, and specifying the particulars thereof in detail.
(c) Good Reason. The Executive=s employment may be terminated by
the Executive for Good Reason. For purposes of this Agreement, AGood Reason@
shall mean.
(i) the assignment to the Executive of any duties
inconsistent in any respect with the Executive=s position (including status,
offices, titles and reporting requirements), authority, duties or
responsibilities as contemplated by Section 4(a) of this Agreement, or any other
action by the Company which results in a diminution in such position, authority,
duties or responsibilities, excluding for this purpose an isolated,
insubstantial and inadvertent action not taken in bad faith and which is
remedied by the Company promptly after receipt of notice thereof given by the
Executive;
(ii) any failure by the Company to comply with any of the
provisions of Section 4(b) of this Agreement, other than an isolated,
insubstantial and inadvertent failure not occurring in bad faith and which is
remedied by the Company promptly after receipt of notice thereof given by the
Executive;
(iii) the Company=s requiring the Executive to be based at
any office or location other than as provided in Section 4(a)(i)(B) hereof or
the Company=s requiring the Executive to travel on Company business to a
substantially greater extent than required immediately prior to the Effective
Date;
(iv) any purported termination by the Company of the
Executive=s employment otherwise than as expressly permitted by this Agreement,
or
(v) any failure by the Company to comply with and satisfy
Section 10(c) of this Agreement.
For purposes of this Section 5(c), any good faith determination of AGood Reason@
made by the Executive shall be conclusive.
(d) Notice of Termination. Any termination by the Company for
Cause, or by the Executive for Good Reason, shall be communicated by Notice of
Termination to the other party hereto given in accordance with Section 11(b) of
this Agreement. For purposes of this Agreement, a ANotice of Termination@ means
a written notice which (i) indicates the specific termination
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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 the 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 (which date
shall be not more than thirty days after the giving of such notice).
(e) Date of Termination. ADate of Termination@ means (i) if the
Executive=s employment is terminated by the Company for Cause, or by the
Executive for Good Reason, the date of receipt of the Notice of Termination or
any later date specified therein, as the case may be, (ii) if the Executive=s
employment is terminated by the Company other than for cause or Disability, the
Date of Termination shall be the date on which the Company notifies the
Executive of such termination and (iii) if the Executive=s employment is
terminated by reason of death or Disability, the Date of Termination shall be
the date of death of the Executive or the Disability Effective Date, as the case
may be.
6. Obligations of the Company upon Termination.
(a) Good Reason; Other Than for Cause, Death or Disability. If,
during the Employment Period, the Company shall terminate the Executive=s
employment other than for Cause or Disability or the Executive shall terminate
employment for Good Reason:
(i) the Company shall pay to the Executive in a lump sum in
cash within 60 days after the Date of Termination the aggregate of the following
amounts:
A. the sum of (1) the Executive=s Annual Base salary
through the Date of Termination to the extent not theretofore paid, and (2) any
compensation previously deferred by the Executive (together with any accrued
interest or earnings thereon) and any accrued vacation pay, in each case to the
extent not theretofore paid (the sum of the amounts described in clauses (1) and
(2) shall be hereinafter referred to as the AAccrued Obligations@); and
B. the amount (hereinafter referred to as the ASeverance
Amount@) equal to the product of (1) two and ninety-nine hundredths (2.99) and
(2) the sum of (x) Executive=s Annual Base Salary and (y) Executive=s Recent
Average Bonus (defined as the average annualized bonus paid or payable to
Executive under the Company=s Short Term Incentive Plan with respect to the
three fiscal years immediately preceding the fiscal year in which the Effective
Date occurs or, if Executive has been employed by Company less than 3 years, the
average annualized bonus paid or payable to Executive by Company for the period
Executive has been employed); and
C. if it shall be determined that any payment to
Executive pursuant to this Agreement or any other payment or benefit from the
Company for the benefit of Executive would be subject to the excise tax imposed
by Section 4999 of the Internal Revenue Code of 1986, as amended (the ACode@),
or any similar or successor excise tax, then Executive shall receive an
additional amount such that, after payment of the aforesaid excise tax and any
incremental federal, state or local income taxes or excise taxes payable by
Executive on such amount, there remains a balance sufficient to pay all such
taxes being reimbursed, it being the intention of the
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parties that after all additional income or excise taxes so payable by Executive
are deducted from the gross amount received by Executive, the net amount shall
be equal to the aggregate amount of benefits to be provided to Executive under
this Agreement without regard to any excise tax under Section 4999 of the Code
or any similar or successor excise tax,
(ii) for the remainder of the Employment Period after the
Executive=s Date of Termination the Company shall continue benefits to the
Executive and/or the Executive=s family at least equal to those which would have
been provided to them in accordance with the plans, programs, practices and
policies described in Section 4(b)(iii) of this Agreement if the Executive=s
employment had not been terminated or, if more favorable to the Executive, as in
effect generally at any time thereafter with respect to other senior executives
of the Company and its affiliated companies and their families, provided,
however, that if the Executive becomes reemployed with another employer and is
eligible to receive medical or other welfare benefits under another
employer-provided plan, the medical and other welfare benefits described herein
shall be secondary to those provided under such other plan during such
applicable period of eligibility. For purposes of determining eligibility (but
not the time of commencement of benefits) of the Executive for retiree benefits
pursuant to such plans, practices, programs and policies, the Executive shall be
considered to have remained employed until twelve months after the Date of
Termination and to have retired on the last day of such period; and
(iii) to the extent not theretofore paid or provided, the
Company shall timely pay or provide to the Executive any other amounts or
benefits required to be paid or provided or which the Executive is eligible to
receive under any plan, program, policy or practice or contract or agreement of
the Company and its affiliated companies (such other amounts and benefits shall
include and executive shall be entitled to receive the benefits described in
Section 6(b) below and shall be hereinafter referred to as the AOther
Benefits@).
(iv) the Company shall pay Executive an Incremental Monthly
Pension beginning the Start Date. The Start Date means the first day of the
month coincident with or next following the later of:
(1) Executive=s 55th birthday; or
(2) the Date of Termination.
The Incremental Monthly Pension shall have an actuarial equivalent value of a
single-life annuity for Executive of$5,416.37 per month beginning at the Start
Date. The foregoing amount has been computed as
KCPL Pension (sum of single-life annuity
available under SERP and qualified pension plan)
projected at early retirement date, assuming 60%
annual base salary increases to age 55 $13,083.74
KCPL Pension projected at early retirement date
based on employment termination May 31, 2001 (7,667.37)
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Incremental Monthly Pension $5,416.37
=========
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The above amounts have been verified in consultation with KCPL.
The Incremental Monthly Pension may be paid or made available from one or more
sources, including the Company=s qualified pension plan for non-union employees
(AQualified Plan@), its Supplemental Executive Retirement Plan (ASERP@), and/or
any other plan, program or policy. Thus, if other plans (programs, policies,
etc.) of the Company provide or make available a defined benefit pension at
least equal to the Incremental Monthly Pension, the portion of the Incremental
Monthly Pension provided by this Agreement will be zero.
(b) Death. If the Executive=s employment is terminated by reason
of the Executive=s death during the Employment Period, this Agreement shall
terminate without further obligations to the Executive=s legal representatives
under this Agreement, other than for payment of Accrued Obligations and the
timely payment or provision of Other Benefits. Accrued Obligations shall be
paid to the Executive=s estate or beneficiary, as applicable, in a lump sum in
cash within 60 days of the Date of Termination. With respect to the provision
of Other Benefits, the term Other Benefits as utilized in this Section 6(b)
shall include, without limitation, and the Executive=s estate and/or
beneficiaries shall be entitled to receive, benefits at least equal to the most
favorable benefits provided by the Company and affiliated companies to the
estates and beneficiaries of senior executives of the Company and such
affiliated companies under such plans, programs, practices and policies relating
to death benefits, if any, as in effect with respect to other senior executives
and their beneficiaries at any time during the 120-day period immediately
preceding the Effective Date or, if more favorable to the Executive=s estate
and/or the Executive=s beneficiaries, as in effect on the date of the
Executive=s death with respect to other senior executives of the Company and its
affiliated companies and their beneficiaries.
(c) Disability. If the Executive=s employment is terminated by
reason of the Executive=s Disability during the Employment Period, this
Agreement shall terminate without further obligations to the Executive, other
than for payment of Accrued Obligations and the timely payment or provision of
Other Benefits. Accrued Obligations shall be paid to the Executive in a lump
sum in cash within 60 days of the Date of Termination. With respect to the
provision of Other Benefits, the term Other Benefits as utilized in this Section
6(c) xxxXx include, and the Executive xxxXx be entitled after the Disability
Effective Date to receive, disability and other benefits at least equal to the
most favorable of those generally provided by the Company and its affiliated
companies to disabled executives and/or their families in accordance with such
plans, programs, practices and policies relating to disability, if any, as in
effect generaIly with respect to other senior executives and their families at
any time during the 120-day period immediately preceding the Effective Date or,
if more favorable to the Executive and/or the Executive=s family, as in effect
at any time thereafter generaIly with respect to other senior executives of the
Company and its affiliated companies and their families.
(d) Cause; Other Than for Good Reason. If the Executive=s
employment shall be terminated for Cause during the Employment Period, this
Agreement shall terminate without further obligations to the Executive other
than the obligation to pay to the Executive (i) his Annual Base Salary through
the Date of Termination, (ii) the amount of any compensation previously
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deferred by the Executive, and (iii) Other Benefits, in each case to the extent
theretofore unpaid. If the Executive voluntarily terminates employment during
the Employment Period, excluding a termination for Good Reason, this Agreement
shall terminate without further obligations to the Executive, other than for
Accrued Obligations and the timely payment or provision of Other Benefits. In
such case, all Accrued Obligations shall be paid to the Executive in a lump sum
in cash within 60 days of the Date of Termination.
7. Non-exclusivity of Rights. Nothing in this Agreement shall prevent
or limit the Executive=s continuing or future participation in any plan,
program, policy or practice provided by the Company or any of its affiliated
companies and for which the Executive may qualify, nor, subject to Section
10(f), shall anything herein limit or otherwise affect such rights as the
Executive may have under any contract or agreement with the Company or any of
its affiliated companies. Amounts which are vested benefits or which the
Executive is otherwise entitled to receive under any plan, policy, practice or
program of or any contract or agreement with the Company or any of its
affiliated companies at or subsequent to the Date of Termination shall be
payable in accordance with such plan, policy, practice or program or contract or
agreement except explicitly modified by this Agreement.
8. Settlement. The Company does not waive any right of set-off,
counterclaim, recoupment, defense or other claims, right or action which the
Company may have against the Executive or others.
9. Confidential Information. The Executive shall hold in fiduciary
capacity for the benefit of the Company all secret or confidential information,
knowledge or data relating to the Company or any of its affiliated companies,
and their respective businesses, which shall have been obtained by the Executive
during the Executive=s employment by the Company or any of its affiliated
companies and which shall not be or become public knowledge (other than by acts
by the Executive or representatives of the Executive in violation of this
Agreement). After termination of the Executive=s employment with the Company,
the Executive shall not, without the prior written consent of the Company or as
may otherwise be required by law or legal process, communicate or divulge any
such information, knowledge or data to anyone other than the Company and those
designated by it. In no event shall an asserted violation of the provisions of
this Section 9 constitute a basis for deferring or withholding any amounts
otherwise payable to the Executive under this Agreement.
10. Successors. (a) This Agreement is personal to the Executive and
without the prior written consent of the Company 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 enforceable by the Executive=s
legal representatives.
(b) This Agreement shall inure to the benefit of and be binding
upon the Company and its successors and assigns.
(c) The Company 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 the Company to assume
expressly and agree to perform this Agreement in the same manner and
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to the same extent that the Company would be required to perform it if no such
succession had taken place. As used in this Agreement, ACompany@ shall mean the
Company 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.
11. Miscellaneous. (a) This Agreement shall be governed by and
construed in accordance with the laws of the State of Michigan. The captions of
this Agreement are not part of the provisions hereof and shall have no force or
affect. This Agreement may not be amended or modified otherwise than by a
written agreement executed by the parties hereto or their respective successors
and legal representatives.
(b) 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, at the most recent home address of Executive as
reflected in the Company=s Human Resources Department files; and
If to the Company:
Board of Directors
c/o Chairman of the Compensation Committee
SEMCO Energy, Inc.
000 Xxxxx Xx.
Xxxx Xxxxx, Xxxxxxxx 00000, until Company headquarters relocation, and
then to: 00000 00 Xxxx Xxxx, Xxxxx 000
Xxxxxxxxxx Xxxxx, Xxxxxxxx 00000
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) The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other provision
of this Agreement
(d) 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) The Executive=s or the Company=s failure to insist upon strict
compliance with any provision of this Agreement or the failure to assert any
right the Executive or the Company may have hereunder, including, without
limitation, the right of the Executive to terminate employment for Good Reason
pursuant to Section 5(c)(i)-(v) of this Agreement, shall not be deemed to be a
waiver of such provision or right or any other provision or right of this
Agreement.
(f) This Agreement sets forth the entire agreement and
understanding of the parties with respect to the matters contemplated hereby and
supersedes any other agreement between the parties with respect to the subject
matter hereof.
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IN WITNESS WHEREOF, the Executive has hereunto set the Executive=s hand
and, pursuant to the authorization from its Board of Directors, the Company has
caused these presents to be executed in its name on its behalf, all as of the
day and year first above written.
SEMCO ENERGY, INC.
By /s/Xxxxxx X. Xxxxxxxx
-----------------------
Executive
/s/Xxxxxx Xxxxxxx
------------------
Xxxxxx Xxxxxxx
1148513
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