EMPLOYMENT AGREEMENT
EXHIBIT
10.6
THIS
AGREEMENT ( the “Agreement”) is
made
as of July 1, 2005, between The United Illuminating Company, a Connecticut
Corporation (the “Company”) and Xxxxx X. Xxxxx (the “Executive”),
WITNESSETH
THAT
WHEREAS,
the Executive previously has been employed by UIL Holdings Corporation (“UIL”)
as its Vice President Investor Relations, Corporate Secretary and Assistant
Treasurer, and is covered by the terms of a certain employment agreement with
UIL dated as of November 8, 2004, and
WHEREAS,
as part of its finance reorganization, UIL Holdings Corporation wishes to
transfer the Executive’s employment to The United Illuminating Company (the
“Company”) where she will be employed as Vice President--Investor Relations,
Corporate Secretary and Treasurer of both the Company and UIL, and the Executive
desires to be so employed, and
WHEREAS,
the Company and the Executive desire to be bound by the terms of this revised
employment Agreement (the “Agreement”), which shall supersede and replace all
provisions of the prior employment agreement;
NOW
THEREFORE, in consideration of the foregoing and the respective covenants and
agreements of the parties herein contained, and the services to be rendered
to
the Company pursuant hereto, the parties hereby agree as follows:
(1) EMPLOYMENT;
TERM
(a) The
Company hereby agrees to employ the Executive, and the Executive hereby agrees
to serve the Company, at the pleasure of the Board of Directors of the Company
(the “Company Board”) and UIL Holdings Corporation (the “ UIL Board”), all upon
the terms and conditions set forth herein.
(b) The
term
of this Agreement shall be for a period commencing on the date hereof and ending
on the second anniversary of the date hereof, unless this Agreement is earlier
terminated as provided in Section 5 (the “Initial Term”). Unless the Company has
provided the Executive with at least ninety (90) days prior written notice
of
its decision not to renew this Agreement after the Initial Term or any
subsequent term, this Agreement shall be automatically renewed for a successive
one year term (the Initial Term and any renewal term being referred to as the
“Term”). For
purposes of this Agreement, a non-renewal at the election of the Company at
the
end of a Term shall constitute a termination of this Agreement without cause,
and shall be governed by the provisions of Section 6(c). In no event shall
the
Company give notice of a non-renewal from
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the
time
that an impending Change in Control (as hereinafter defined) is announced
through the date of the consummation of such Change in Control.
(2) POSITION
AND DUTIES
(a)
The
Executive shall be employed by the Company as its Vice President-Investor
Relations, Corporate Secretary and Treasurer, and shall also serve as the Vice
President-Investor Relations, Corporate Secretary and Treasurer of UIL or in
such other equivalent or higher position as the UIL Board may determine. The
Executive shall:
(i)
accept such employment and perform and discharge, faithfully, diligently and
to
the best of the Executive's abilities, the duties and obligations of the
Executive's office and such other duties as may from time to time be assigned
to
the Executive by, or at the direction of, the Company Board and UIL Board;
and
(ii)
devote substantially all of the Executive's working time and efforts to the
business and affairs of the Company and UIL.
(b)
Prior
to a Change in Control, in the event that the Executive is named by the UIL
Board to a position higher in rank or compensation than that applicable at
the
commencement of the Initial Term, nothing in this Agreement shall obligate
the
Company or UIL to continue such Executive in such higher position; and the
Company shall not be deemed in “Breach” of the Agreement (as defined in Section
5(d)) for failure to continue the Executive in such higher
position.
(c)
If
the Executive is a participant in the UIL Holdings Corporation Change in Control
Severance Plan (the “UIL CIC Plan II”) as of a Change in Control as therein
defined, then for the twenty-four month period after such Change in Control,
the
Company’s employment of the Executive shall be without diminishment in the
Executive's management responsibilities, duties or powers. In the event that
the
Executive’s employment is not so continued, the Executive may claim to have
suffered a Constructive Termination, in accordance with the terms of the UIL
CIC
Plan II.
(3) PLACE
OF PERFORMANCE
In
her
employment by the Company, the Executive shall be based within a fifty (50)-mile
radius of the current executive offices of the Company in New Haven,
Connecticut.
(4) COMPENSATION
(a)
Base
Salary.
During
the Initial Term of the Executive's employment hereunder, the Executive shall
receive a base salary (“Base Salary”) at an annual rate (effective April 1,
2005) of One Hundred Eighty Thousand Dollars ($180,000.00), payable in
accordance with the then customary payroll practices of the Company. The
Executive's performance and Base Salary shall be reviewed by the UIL Board
at
least annually, and may be revised upward as
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a
result
of any such review. The Executive’s Base Salary may be revised downward by the
UIL Board contemporaneously with any general reduction of the salary rates
of
the Company’s other officers.
(b)
Incentive
Compensation.
During
the Term of the Executive’s employment hereunder, the Executive shall be
eligible to be designated by the Company Board, or by the UIL Board in the
event
that the program is a UIL Plan, as a participant in each annual short-term
incentive compensation program, and any long-term incentive program, maintained
for management employees of the Company; provided, however, that entitlement
to
participation, and continued participation, in any long-term equity incentive
program shall be conditioned upon the Executive fully complying with any stock
ownership and retention guidelines from time to time established and promulgated
by the UIL Board.
For
purposes of this Agreement, the Executive’s “Accrued
Incentive Compensation”
shall
mean the amount of any annual short-term incentive compensation earned with
respect to the calendar year ended prior to the Date of Termination (as defined
in Section 5) but not yet paid as of the Executive’s Date of
Termination.
The
Executive’s “Stub-Period
Incentive Compensation”
shall
mean the annual short-term incentive compensation being earned in the year
in
which the Executive terminates employment, pro-rated for the year in which
she
terminates service, and shall be equal to that short-term annual incentive
compensation payment to which the Executive would be entitled, if any, under
the
terms of the Company’s executive incentive compensation plan, calculated as if
she had been employed by the Company on the last day of the year including
her
Date of Termination, and had achieved personal goals ‘at target’, but based on
actual performance with respect to the achievement of Company and UIL financial
goals (referred to as “Company goals”), multiplied by a fraction, the numerator
of which is the number of days which have elapsed in such year through the
Date
of Termination and the denominator of which is 365. UIL shall determine in
its
discretion the composition of the Executive’s scorecard, and what constitutes a
‘personal goal’ and ‘Company goal’; provided generally that an Executive’s
‘personal goals’ shall include, for example, her strategic opportunities,
leadership, and balance scorecard goals, other than business unit and UIL total
financial goals, and Company goals shall include, for example, UIL and Company
financial goals based on earnings per share, cash flow, and all other goals
not
defined as personal goals. In the event that the ‘gate’, if any, is not achieved
with respect to Company goals, then no Stub-Period Incentive Compensation will
be paid. Any Stub-Period Incentive Compensation payable upon termination of
the
Executive shall be paid in accordance with Section 6(e) of this
Agreement.
(c)
Change
in Control Severance Plan. The
Executive has been designated by the UIL Board as an individual covered by
the
UIL Holdings Corporation Change in Control Severance Plan II (the “UIL CIC Plan
II”), subject to all of the terms and provisions of the UIL CIC Plan II as it
may be amended from time to time. For purposes of this Agreement, “Change in
Control” shall have the meaning set forth in the UIL CIC Plan II.
Nothing
in this subsection, however, shall entitle the Executive to continued
participation in such Plan should the UIL Board determine otherwise in
accordance with the terms of that Plan.
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(d)
Business
Expenses.
During
the Term, the Executive shall be entitled to receive prompt reimbursement for
all reasonable employment- related business expenses incurred by the Executive,
in accordance with the policies and procedures established by the Company Board
from time to time for all of the Company's officers, provided that the Executive
properly accounts therefor.
(e)
Benefit
Programs.
During
the Term of the Executive's employment hereunder and to the extent she meets
the
applicable eligibility requirements, the Executive shall be entitled to
participate in and receive benefits under all of the Company's employee benefit
plans, programs and arrangements for its similarly situated officers on the
same
terms and conditions that apply to such officers, including, without limitation,
any plan or program of an affiliated company in which the Company is a
participating employer, but only for so long as the Company remains a
participating employer. Except as otherwise expressly provided, nothing paid
to
the Executive under any such plan, program or arrangement presently in effect
or
made available by the Company in the future shall be deemed to be in lieu of
compensation to the Executive under any other Section of this Agreement.
Nothing
in this Agreement shall require the Company to maintain a particular benefit
plan or program, or preclude the Company from amending or terminating any such
plans, programs or arrangements, including its participation therein, or
eliminating, reducing or otherwise changing any benefit provided thereunder,
so
long as such change similarly affects all similarly situated employees of the
Company and is in compliance with applicable law.
(f)
Vacations
and Holidays.
The
Executive shall be entitled to that number of weeks of paid vacation in each
calendar year determined by the Company Board from time to time to be available
to similarly situated Company officers, and shall also be entitled to all paid
holidays afforded by the Company to its management employees.
(5) TERMINATION
(a)
Death
or Disability.
The
Executive's employment hereunder shall terminate upon the Executive's death
or
termination due to disability (as described in Section 6(a) of this
Agreement).
(b)
Termination
by Company for Cause.
The
Company may at any time by written notice to the Executive terminate the
Executive’s employment for Cause in accordance with the following provisions:
(i)
Termination
for Cause Prior to a Change in Control.
Prior
to the date of a Change in Control, the Company shall be deemed to have “Cause”
to terminate the Executive’s employment hereunder only upon the Executive’s:
(1)
failure to comply with any material term of this Agreement, or to perform and
discharge the duties or obligations of the Executive’s office, or such other
duties as may from time to time be assigned to the Executive by, or at the
direction of, the UIL Board, faithfully, diligently, and competently, unless
any
such failure is cured in all material respects to the reasonable satisfaction
of
the UIL Board within sixty (60) days after the Executive receives written notice
of such failure; or
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(2)
failure to devote substantially all of her working time and efforts to the
business and affairs of the Company unless any such failure is cured in all
material respects to the reasonable satisfaction of the UIL Board within sixty
(60) days after the Executive receives written notice of such failure;
or
(3)
misconduct that is demonstrably injurious to the interests of the Company or
its
Affiliates (as that term is defined in Section 10) unless such misconduct is
rectified in all material respects to the reasonable satisfaction of the UIL
Board within thirty (30) days after the Executive receives written notice of
such misconduct; or
(4)
commission of a serious crime, such as an act of fraud, misappropriation of
funds, embezzlement, or a crime involving personal dishonesty or moral
turpitude.
(ii)
Termination
for Cause After a Change in Control.
During
the period that commences on a Change in Control and for twenty-four (24) months
thereafter (the “Change in Control Protective Period”), and subject to the same
notice and cure provisions specified above, the Company (or its successor or
other entity employing the Executive following such Change in Control) shall
be
deemed to have Cause to terminate the Executive’s employment hereunder only upon
the Executive’s:
(1)
commission of a serious crime, such as an act of fraud, misappropriation of
funds, embezzlement, or a crime involving personal dishonesty or moral
turpitude; or
(2)
misconduct that is demonstrably injurious to the interests of the Company or
its
Affiliates; or
(3)
willful failure of the Executive to substantially perform her duties (other
than
by reason of incapacity due to physical or mental illness or
injury).
(d) Termination
by Company without Cause.
The
Company may terminate the Executive’s employment at any time, without cause,
upon ninety (90) days prior written notice to the Executive.
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(e) Termination
by Executive.
(i) If
the
Executive is not in default of any of the Executive’s obligations under Sections
(2), (10), (11) or (12) hereof, the Executive may terminate employment hereunder
upon at least thirty (30) days’ prior notice, for failure of the Company to
observe and perform one or more of its obligations under Sections (2), (3)
and/or (4) hereof, which failure the Company fails to remedy within such notice
period (a “Breach by the Company”).
(ii) If
the
Executive is not in default of any of the Executive’s obligations under Sections
(2), (10), (11) or (12) hereof, the Executive may terminate employment hereunder
in the absence of a Breach by the Company, effective upon at least ninety
(90) days prior
written notice.
(f) Date
of Termination.
For
purposes of this Agreement, the “Date of Termination” is defined as (i) the
Executive’s date of death, in the event of her death; or the date of her
termination due to disability, in the case of disability, or (ii) the date
specified in the notice of termination, in the case of the Executive’s
termination pursuant to Sections (5)(b), (5)(c), 5(d) hereof.
(6) CONSEQUENCES
OF TERMINATION OR NON-RENEWAL.
(a)
Termination
on Death, Disability or Retirement; or by the Executive in the Absence of a
Breach by the Company upon Adequate Notice.
If the
Executive’s employment terminates by reason of the Executive’s death, or her
total or partial physical or mental disability such
that
the Executive becomes entitled to long-term disability benefits under the
Company’s long-term disability plan,
or if
the Executive retires on or after becoming eligible to retire under the terms
of
the Company’s Pension Plan, or terminates employment hereunder in the absence of
a Breach by the Company upon ninety (90) days prior written notice, the Company
shall pay to the Executive or, in the event of death or disability, the
Executive’s personal representative and/or spouse:
(i)
the
Executive’s Base Salary earned, but unpaid, as of the Date of Termination and
Accrued Incentive Compensation (as defined in Section 4(b));
(ii)
Stub-Period Incentive Compensation (as defined in Section 4(b)) earned, but
unpaid, as of the Date of Termination, but only in the case of the Executive’s
death or termination due to disability, or retirement (as hereinbefore defined),
and not in case of her voluntary termination other than on account of such
retirement; plus
(iii)
any
amounts payable pursuant to (4)(d) (unreimbursed business expenses), (4)(e)
(employee benefits due and owing), and 4(f) (accrued, but unpaid vacation or
holidays); plus
(iv)
any
benefits or amounts payable on account of the Executive’s (A) participation in
any long-term incentive compensation plan and equity compensation plan or
arrangement, and (B) participation in any deferred compensation plan in which
she was a
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participant
as of her termination of service, all as determined in accordance with the
terms
and conditions of such plans and arrangements.
Pending
a
determination that the Executive is entitled to long-term disability benefits,
the Executive’s short-term disability benefits shall be extended, as necessary
at 50% of Base Salary, if her length of employment with the Company is of such
short duration that her short term disability benefits would otherwise expire
before her entitlement to long-term disability benefits is
determined.
Upon
payment of these amounts, the Company shall have no further obligation to the
Executive, the Executive’s personal representative and/or spouse under this
Agreement or on account of, or arising out of, the termination of the
Executive’s employment.
(b)
Upon
Termination for Cause; or by the Executive on fewer than 90 days
notice.
If the
Company terminates the Executive’s employment for Cause, or the Executive
terminates employment hereunder in the absence of a Breach by the Company and
upon fewer than ninety
(90) days prior
written notice, the Company shall pay to the Executive:
(i)
the
Executive’s Base Salary earned, but unpaid, as of the Date of Termination;
plus
(ii)
any
amounts payable pursuant to Sections (4)(d), (4)(e), and 4(f) hereof, and
(iii)
any
benefits payable under any elective non-qualified deferred compensation plan
in
which the Executive had been a participant, other than any benefit under any
supplemental executive retirement plan of the Company or an Affiliate,
whereupon
the Company shall have no further obligation to the Executive under this
Agreement or on account of, or arising out of, the termination of the
Executive’s employment.
(c)
Upon
Termination Without Cause, or Upon Breach by the Company, not on account of
a
Change in Control.
If the
Company terminates the Executive's employment hereunder without Cause (including
by non-renewal
of this Agreement at the election of the Company at the end of a
Term),
or if
the Executive terminates the Executive's employment hereunder on account of
a
Breach by the Company, and in either case the termination is not upon a Change
in Control or within the Change in Control Protective Period, the Company shall
pay or provide (as applicable) to the Executive, the following:
(i)
the
Executive’s Base Salary, Accrued Incentive Compensation and Stub-Period
Incentive Compensation earned, but unpaid, as of the Date of Termination;
plus
(ii)
any
amounts payable pursuant to Sections 4(d), 4(e), and 4(f); plus
(iii)
any
benefits or amounts payable on account of the Executive’s (A) participation in
any long-term incentive compensation plan and equity compensation plan or
arrangement, and (B) participation in any deferred compensation plan in which
she was a
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participant
as of her termination of service, all as determined in accordance with the
terms
and conditions of such plans and arrangements; plus
(iv)
lump
sum severance equal to two (2) times the
sum
of:
(1)
the
Executive’s annual Base Salary rate in effect immediately prior to the
Executive’s Date of Termination, as determined by the UIL Board’s most recent
review of salary rates pursuant to Section 4(a); and
(2)
the
short-term annual incentive compensation payment to which the Executive would
be
entitled, calculated as if she had been employed by the Company on the last
day
of the year of her Termination, and as both personal goals and Company goals
had
been achieved ‘at target’, without pro-ration for the fact that the Executive
was employed only a portion of such year. Except for the assumption that such
goals shall have been achieved at target, personal and Company goals shall
be
defined and determined as set forth in Section 4(b) of this
Agreement.
(v)
for
the period ending on the second anniversary of the date of the Executive’s Date
of Termination, continued participation in the medical and dental plans and
programs in which she was a participant as of her Date of Termination on the
same basis as if she remained an active employee, provided that such
participation is possible under the terms and provisions of such plans and
programs and applicable law. In the case of continuation in the Company’s
medical and dental plans, such period of continued participation shall run
concurrently with, and reduce day- for-day, any obligation that the Company
or
any Affiliate would have to provide “COBRA” continuation coverage with respect
to the Executive’s termination of employment. If the Executive’s participation
in any such plan or program is barred as a result of the Executive’s
termination, the Company shall arrange to provide the Executive with benefits
substantially similar on an after-tax basis to those that the Executive would
have been entitled to receive under such plan or program, provided that with
respect to any benefit to be provided on an insured basis, the value of such
coverage shall be based on the present value of the premiums expected to be
paid
for such coverage, and with respect to other benefits, such value shall be
the
present value of the expected cost to the Company of providing such benefits;
and
(vi)
the
addition of two (2) years of service deemed as an Employee of the Company in
the
calculation of the entitlement to and benefits payable under the Company’s
retiree medical benefit plan and in the calculation of benefits payable under
The United Illuminating Company Pension Plan, which amount shall be paid as
a
non-qualified supplemental retirement benefit.
(d)
Upon
Non-renewal of Agreement at end of Term.
If the
Executive’s employment hereunder is terminated due to non-renewal of this
Agreement, the Company shall pay or provide (as applicable) to the Executive
the
same payments and benefits to which the Executive would have been entitled
had
she been terminated without cause in accordance with Section 6(c) of this
Agreement.
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(e)
Timing
of Payment.
Any
cash
amount that is due and owing to the Executive upon her termination of service
pursuant to Section 6 will be paid as soon as administratively feasible
following the effective date (including any revocation period) of the Release
provided for in Section 6(f); provided, however, that (i) any Stub-Period
Incentive Compensation, and (ii) that portion of any severance payment that
is
based on annual short-term incentive compensation shall be paid following the
close of the year in which the Date of Termination occurs, at the same time
that
incentive compensation generally would be payable upon authorization of the
UIL
Board to all other employees.
(f)
Release.
All
payments and obligations of the Company under Section (6), (7) and (8) shall
be
conditioned upon the execution and delivery by Executive to the Company of
a
full and effective release by Executive of any liability by the Company to
Executive in form and substance reasonably satisfactory to the
Company.
(7) CHANGE
IN CONTROL
(a)
If
on, or within twenty-four (24) months following a Change in Control, the Company
(or its successor or other entity employing the Executive following such Change
in Control) either terminates the Executive's employment hereunder without
Cause
or fails to renew this Agreement on substantially identical terms, or if the
Executive terminates the Executive's employment on account of a Constructive
Termination (as defined in the UIL CIC Plan II), then the Executive shall be
entitled to the following:
(i)
the
Executive’s Base Salary, Accrued Incentive Compensation and Stub-Period
Incentive Compensation earned, but unpaid, prior to the Date of Termination;
plus
(ii)
any
amounts payable pursuant to Sections 4(d), 4(e), and 4(f) hereof;
plus
(iii)
any
benefits or amounts payable on account of the Executive’s (A) participation in
any long-term incentive compensation plan and equity compensation plan or
arrangement, and (B) participation in any deferred compensation plan in which
she was a participant as of her termination of service, all as determined in
accordance with the terms and conditions of such plans and arrangements;
plus
(iv)
those payments, and benefits, if any, to which the Executive is entitled by
reason of having been designated a Participant in the UIL CIC Plan II. The
severance payments, pension supplements and other benefit provisions under
such
Plan (the “Total UIL CIC Plan Package”) shall be controlling and shall supplant
the payments and benefits to which the Executive would be entitled assuming
the
Executive were terminated without Cause pursuant to the terms of this Agreement,
including without limitation any severance benefits, supplemental retirement
benefits, short-term incentive compensation and other compensation and benefits
(other than long term incentive compensation) under this Agreement (the
“Employment Agreement Termination Package”); expressly provided, however, that
in the event that the Employment Agreement Termination Package exceeds the
value
of the Total UIL CIC Plan Package, then the Executive shall be entitled to
select one or the other Package, but shall not be
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entitled
to both, and shall not be entitled to select among compensation elements in
each
Package.
Notwithstanding
the foregoing, in the event a Change in Control (as defined in the UIL CIC
Plan
II) occurs on or before October 24, 2008, and the Executive is an employee
in
good standing under a CIC plan of the Company or UIL at the time of such Change
in Control, the Executive shall be entitled, in lieu of the severance under
such
CIC plan, to a grandfathered severance benefit under such plan, based on the
severance formula in effect under the CIC Plan I as of October 23, 2003 in
the
amount of Three Hundred Sixty Seven Thousand, Five Hundred Twenty Four Dollars
($367,524.00), if such amount would be greater than the amount of the severance
benefit to which the Executive otherwise would be entitled under the CIC II
Plan, or such other CIC plan as may be in effect with respect to the Executive
at such time.
(b)
For
purposes of this Agreement, Change in Control shall mean “Change in Control” as
defined with respect to the Company employing the Executive in the UIL CIC
Plan
II, as amended from time to time.
(c)
Payment of benefits under this Section 7 shall be subject to, and conditioned
upon, the provisions of Section 6(e) and (f) hereof.
(8)
ADDITIONAL CONSEQUENCES OF A CHANGE IN CONTROL
(a)
Payments
to Executive.
In the
event that a Change in Control has been approved by all necessary shareholder,
creditor and regulatory actions, then, the Company will pay to the Trustee
of
the UIL Holdings Corporation Supplemental Retirement Benefit Rabbi Trust, as
the
same may be amended or superseded, for the benefit of the Executive, cash equal
to that amount, calculated by the Company’s independent certified public
accountants, to be reasonably sufficient to pay and discharge the Company’s
future obligations, if any, to the Executive and/or her personal representative
and/or spouse, under Section 7 hereof, but only if (i) the Executive’s
employment has been terminated or will be terminated prior to the date of the
Change in Control and (ii) the Company does not make such payment directly
to
the Executive.
In
the
event that the Executive’s employment has not been terminated prior to the date
of the Change in Control, but subsequently is terminated other than for Cause
during the Change in Control Protective Period, then as of the date that notice
of Date of Termination is given to the Executive (or that it is finally
determined that there is a Constructive Termination, in the case of termination
by the Executive), the Company’s Successor (as defined in the UIL CIC Plan)
shall deposit a sum, calculated by such Successor’s independent certified public
accountants, reasonably sufficient to pay and discharge such Successor’s
obligations to the Executive under Section 7 hereof.
(b) Reduction
of Salary.
During
the Change in Control Protective Period, the Executive’s Base Salary may not be
reduced to an annual rate less than the Base Salary rate fixed by the UIL Board
as a result of its most recent review of salary rates, unless such reduction
is
part of, and consistent with, a general reduction of the compensation rates
of
all employees of the Company, its successor, or purchaser of assets, as the
case
may be.
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(9)
TAX SAVINGS PROVISION
If
any
portion of the payments which the Executive has the right to receive from the
Company, or any affiliated entity, hereunder would constitute "excess parachute
payments" (as defined in Section 280G of the Internal Revenue Code, and not
governed by the terms defined in this Agreement) subject to the excise tax
imposed by Section 4999 of the Internal Revenue Code, such excess parachute
payments shall be reduced to the largest amount that will result in no portion
of such excess parachute payments being subject to the excise tax imposed by
Section 4999 of the Internal Revenue Code.
(10)
CONFIDENTIAL INFORMATION
The
Executive recognizes that the Executive’s employment by the Company is one of
highest trust and confidence by reason of her access to certain trade secrets,
confidential business practices, and proprietary information concerning the
Company or any person or entity that directly, or indirectly through one or
more
intermediaries, controls or is controlled by, or is under common control with,
the Company (an “Affiliate”), including, without limitation, the Company’s
methods of doing business, marketing and strategic business plans, employees’
compensation and contract terms, customer lists and customer characteristics
(collectively referred to as “Proprietary Information”). The Executive agrees
and covenants to exercise utmost diligence to protect and safeguard the trade
secrets, confidential business practices and Proprietary Information concerning
the Company and any Affiliate. The Executive further agrees and covenants that,
except with the prior written consent of the Company, she will not, either
during the Term hereof or thereafter, directly or indirectly, use for her own
benefit or for the benefit of any other person or organization, or disclose,
disseminate or distribute to any other person or organization, any of the
Proprietary Information (whether or not acquired, learned, obtained or developed
by the Executive alone or in conjunction with another), unless and until such
Proprietary Information has become a matter of public knowledge through no
action or fault of the Executive or unless otherwise required by court order
to
comply with legal process. All memoranda, notes, records, drawings, documents
or
other writings whatsoever made, compiled, acquired or received by the Executive
during the Term hereof arising out of, in connection with, or related to any
activity or business of the Company are and shall continue to be the sole and
exclusive property of the Company, and shall, together with all copies thereof,
be returned and delivered to the Company by the Executive immediately, when
she
ceases to be employed by the Company, or at any other time upon the Company’s
demand.
(11)
NON-COMPETITION
The
Executive agrees and covenants that, during the Term of this Agreement and
for a
period of twelve (12) months following the month during which the Executive
ceases to be employed by the Company and its Affiliates (the “time in
question”), the Executive will not, in any capacity, directly or
indirectly,
whether
as a consultant, employee, officer, director, partner, member, principal,
shareholder, or otherwise:
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(i)
become employed by, enter into a consulting arrangement with, or otherwise
perform services for, manage, acquire an ownership in, or participate in the
management or ownership of, a Competitor; or
(ii)
directly or indirectly divert or attempt to divert from the Company or any
Affiliate any business in which the Company or any Affiliate has been actively
engaged during the Term hereof, or in any way interfere with the relationships
that the Corporation or any Affiliate has with its sources of supply or
customers; or
(iii)
directly or indirectly interfere or attempt to interfere with the relationship
between the Company or any Affiliate and any of such entity’s employees;
unless
the Company has granted prior written approval which may be withheld for any
reason.
For
purposes of this Section “Competitor” means any person or entity (a ‘business’)
that sells goods or services that are directly competitive with those goods
or
services sold or provided by the Company or any Affiliate in a geographic area
in which the Company or Affiliate is doing business and such Competitor is
also
doing business at the time in question, and such goods or services were being
sold or provided at the Date of Termination, and, for the Company’s most
recently completed fiscal year ending with, or immediately prior to, the Date
of
Termination, contributed more than 10% of the revenue of the Company and its
Affiliates. Notwithstanding anything to the contrary in this Section, a business
shall not deemed to be a Competitor with the Company if the Executive is
employed by, or otherwise associated with such business and that business has
a
unit that is in competition with the Company or an Affiliate but the Executive
does not have direct or indirect responsibilities for the services or goods
involved in the competition.
Nothing
in this Section shall be construed to prohibit the ownership by the Executive
of
less than five percent (5%) of any class of securities of any entity that is
engaged in any of the foregoing businesses having a class of securities
registered pursuant to the Securities Exchange Act of 1934 (the “Exchange Act”),
provided that such ownership represents a passive investment and that neither
the Executive, nor any group of persons including the Executive, in any way,
directly or indirectly, manages or exercises control of such entity, guarantees
any of its financial obligations, or otherwise takes any part in its business,
other than through exercising the Executive’s rights as a
shareholder.
For
purposes of this Section “Affiliate” means any entity that directly or
indirectly controls, is controlled by, or is under common control with the
Company.
As
used
in Sections 10-12, the term the “Company” shall mean UIL Holdings Corporation,
The United Illuminating Company and any successor to, or acquirer of, the
business or assets of either of them.
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(12)
DISCLOSURE AND ASSIGNMENT OF INVENTIONS AND DISCOVERIES.
(a)
Disclosure
of Inventions.
The
Executive agrees to make prompt and complete disclosure to the Company of all
inventions and discoveries made or conceived by her, alone or with others,
while
this Agreement is in effect, or within a reasonable time thereafter, which
arise
out of or relate to the services rendered pursuant to this Agreement. The
Executive also agrees to keep necessary records, including notes, sketches,
drawings, models and data supporting all such
inventions and discoveries made by her, alone or with others, during the course
of performing the services pursuant to this Agreement, and the Executive agrees
to furnish the Company, upon request, all such records.
(b)
Assignment
of Inventions and Discoveries.
The
Executive also agrees that she will assign to the Company all inventions and
discoveries made by her which arise out of and pertain to the services rendered
pursuant to this Agreement, together with all domestic and foreign patents
as
may be obtained on these inventions and discoveries. The Executive further
agrees that, upon request of the Company, she will execute all necessary papers
and cooperate in the fullest degree with the Company in securing, maintaining
and enforcing any such patents which arise out of her services under this
Agreement. It is understood, however, that these obligations undertaken by
Executive will be at no expense to her.
(13)
MISCELLANEOUS.
(a)
Equitable
Remedies.
The
Executive acknowledges that the restrictions provided for in Sections (10)
through (12) are reasonable and necessary in order to protect the legitimate
interests of the Company and its Affiliates, and that any violation thereof
would result in serious damage and irreparable injury to the Company and its
Affiliates. Further, the
Executive acknowledges that the services to be rendered by her are of such
unique and extraordinary nature, and the resulting injury to the Company from
a
breach of Sections (10) through (12), inclusive, by the Executive would be
of
such a nature, that an action at law for the collection of damages would not
provide adequate relief to the Company for the enforcement of its rights in
the
event of an actual or threatened violation by the Executive of her commitments
and obligations under Sections (10) through (12). The Executive agrees that
upon
the actual or threatened breach
or
violation of any of the commitments under Section (10) through (12), the Company
shall be entitled to both preliminary and permanent injunctive relief, in any
action or proceeding brought in an appropriate court having jurisdiction over
the Executive, to restrain her from committing any violation of any such
commitments and obligations.
(b)
Effect
Of Breach.
All
payments and other benefits payable but not yet distributed to Executive under
Sections (6), (7) or (8) shall be forfeited and discontinued in the event that
the Executive violates Sections (10) through (12) of this Agreement, or
willfully engages in conduct which is materially injurious to the Company,
monetarily or otherwise, all as determined in the sole discretion of the
Company.
(c)
Successors;
Binding Agreement; Assignment.
(i)
The
Company will require the acquirer of all or substantially all of the business
or
assets of the Company (whether directly or indirectly, by purchase of stock
or
assets, merger,
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13
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consolidation
or otherwise), by agreement in form and substance reasonably satisfactory to
the
Executive, to expressly assume and agree to perform this Agreement in the same
manner and to the same extent that the Company would be required to perform
it
if no such succession had taken place. If the Company fails to obtain such
agreement prior to the effective date of any such succession, the Executive
may
terminate her employment within thirty (30) days of such succession and treat
such termination as a Breach by the Company and termination without cause on
account of a Change in Control entitling the Executive to payments and benefits
under Section 7 of this Agreement. For purposes of implementing the foregoing,
the date on which any such succession becomes effective shall be deemed the
Date
of Termination.
(ii) This
Agreement, and the Executive’s rights and obligations hereunder, may not be
assigned by the Executive. Any attempted assignment of this Agreement by the
Executive shall be void and of no force or effect. This
Agreement and all rights of the Executive hereunder shall inure to the benefit
of and be enforceable by the Executive’s personal or legal representatives,
executors, administrators, successors, heirs, distributees, devisees and
legatees.
As
used
in this Section, the term the “Company” shall include The
United Illuminating Company, UIL Holdings Corporation, and any successor to,
or
acquirer of, the business or assets of the Company that executes and delivers
the agreement provided for in this Section (13)(c) or which otherwise becomes
bound by all the terms and provisions of this Agreement by operation of
law.
(d) Notices.
For the
purpose of this Agreement, notices and all other communications to either party
hereunder provided for in the Agreement shall be in writing and shall be deemed
to have been duly given when delivered or mailed by United States certified
or
registered mail, return receipt requested, postage prepaid, addressed, in the
case of the Company, to the Secretary of the Company at 000 Xxxxxx Xxxxxx,
Xxx
Xxxxx, Xxxxxxxxxxx 00000, or, in the case of the Executive, to the Executive
at
her residence, or to such other address as either party shall designate by
giving written notice of such change to the other party.
(e) Waiver;
Amendment.
No
provision of this Agreement may be modified, waived or discharged unless such
waiver, modification or discharge is approved by the UIL Board and agreed to
in
a writing signed by the Executive and the Company. No waiver by either party
hereto at any time of any breach by the other party hereto of, or compliance
with, any condition or provision of this Agreement to be performed by such
other
party shall be deemed a waiver of any similar or dissimilar provisions or
conditions at the same or at any prior or subsequent time. No agreements or
representations, oral or otherwise, express or implied, with respect to the
subject matter hereof have been made by either party that are not set forth
expressly in this Agreement.
(f)
Governing
Law; Severability.
The
validity, interpretation, construction and performance of this Agreement shall
be governed by the laws of the State of Connecticut. The validity or
unenforceability of any provision or provisions of this Agreement shall not
affect the validity or enforceability of any other provision of this Agreement,
which shall remain in full force and effect. In the event one or more of the
provisions of this Agreement should, for any reason, be held to be invalid,
illegal or unenforceable in any respect, the parties agree that such provisions
shall be legally enforceable to the extent permitted by applicable law, and
that
any
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14
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court
of
competent jurisdiction shall so enforce such provision, or shall have the
authority hereunder to modify it to make it enforceable to the greatest extent
permitted by law.
(g) No
Conflict.
The
Executive hereby represents and warrants to the Company that neither the
execution nor the delivery of this Agreement, nor the employment of the
Executive by the Company will result in the breach of any agreement to which
the
Executive is a party.
(h) Survival.
The
provisions of this Agreement shall not survive the termination of this Agreement
or of the Executive’s employment hereunder, except that the provisions of
Sections (6) through (13) hereof shall survive such termination and shall be
binding upon the Executive, the Executive’s personal representative and/or
spouse, the Company, and the Company’s successors and assigns.
(i) Counterparts;
Facsimile Execution.
This
Agreement may be executed in two or more counterparts, each of which shall
be
deemed an original but all of which together shall constitute one and the same
instrument. Facsimile execution and delivery of this Agreement is legal, valid
and binding execution and delivery for all purposes.
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day
and year first above written.
|
Date:
|
July
8, 2005
|
THE
UNITED ILLUMINATING COMPANY
Attest:
|
/s/
Xxxxxxx X. Xxxxxxxx
|
By:
|
/s/
Xxxxxxxxx X. Xxxxxxx
|
|
|
Xxxxxxx
X. Xxxxxxxx
|
Xxxxxxxxx
X. Xxxxxxx
|
||
|
Its
Chairman and Chief Executive
Officer
|
|
/s/
Xxxxx X. Xxxxx
|
|||
|
Xxxxx
X. Xxxxx
|
