AMENDMENT TO EMPLOYMENT AGREEMENT
Exhibit 10.11
AMENDMENT TO EMPLOYMENT AGREEMENT
WHEREAS, Allegheny Energy Service Corporation for itself and as agent for its parent,
Allegheny Energy, Inc., the affiliates and subsidiaries of AESC and AEI, and any successors or
assigns of any of the foregoing previously entered into that certain employment agreement with
Xxxxxx Xxxxxxxxx (the “Executive”) dated January 1, 2006 (the “Agreement”).
WHEREAS, effective as of November 1, 2007, the parties desire to amend the Agreement to comply
with certain changes in applicable law.
NOW, THEREFORE, in consideration of the covenants contained herein, and for other good and
valuable consideration, the parties hereto agree as follows:
1. Section 12 of the Agreement is amended and restated in its entirety to read as follows:
“12. Withholding and Special Terms Relating to Payments and Benefits. AESC shall
be entitled to withhold from payments due hereunder any required federal, state or local
withholding or other taxes. To the extent that any amounts payable to the Executive under the
Agreement are subject to Section 409A(a)(2)(B) of the Internal Revenue Code of 1986, as amended
(the “Code”), any requirements that such amounts be paid promptly shall not apply and instead
such amounts shall be paid in a lump sum as of the date six (6) months after the Date of
Termination. The Agreement shall be interpreted to avoid any penalty sanctions under Section
409A of the Code. If any payment or benefit cannot be provided or made at the time specified
herein without incurring sanctions under Section 409A of the Code, then such benefit or payment
shall be provided in full at the earliest time thereafter when such sanctions will not be
imposed. For purposes of Section 409A of the Code, each payment made under the Agreement shall
be treated as a separate payment and any payment to be made upon a termination of employment
under the Agreement may only be made if such termination of employment constitutes a “separation
from service” as determined under Section 409A of the Code and its corresponding regulations and
related guidance. All reimbursements and in-kind benefits provided under the Agreement shall be
made or provided in accordance with the requirements of Section 409A of the Code, including,
where applicable, the requirement that (i) any reimbursement is for expenses incurred during the
Executive’s lifetime (or during a shorter period of time specified in the Agreement), (ii) the
amount of expenses eligible for reimbursement, or in-kind benefits provided, during a calendar
year may not affect the expenses eligible for reimbursement, or in-kind benefits to be provided,
in any other calendar year, (iii) the reimbursement of an eligible expense will be made on or
before the last day of the calendar year following the year in which the expense is incurred,
and (iv) the right to reimbursement or in-kind benefits is not subject to liquidation or
exchange for another benefit.”
IN WITNESS WHEREOF, the parties hereto have caused the Amendment to be executed as of the date
first above written.
| Allegheny Energy Service Corporation | ||||
| /s/ Xxxx X. Xxxxxxx | ||||
| Name: Xxxx X. Xxxxxxx | ||||
| Title: Chairman & Chief Executive Officer | ||||
| Allegheny Energy, Inc. | ||||
| /s/ Xxxx X. Xxxxxxx | ||||
| Name: Xxxx X. Xxxxxxx | ||||
| Title: Chairman & Chief Executive Officer | ||||
/s/ Xxxxxx Xxxxxxxxx
|
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| Xxxxxx Xxxxxxxxx | ||||
