EXHIBIT 10.9
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FORM OF
EMPLOYMENT AGREEMENT
between
GREEN MOUNTAIN ENERGY RESOURCES L.L.C.
and
[Name of Employee]
dated as of
August 6, 1997
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TABLE OF CONTENTS
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Page
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Recitals..................................................................... 1
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1. DEFINITIONS............................................................. 1
1.1. "Affiliate"....................................................... 1
1.2. "Cause"........................................................... 1
1.3. "Change of Control"............................................... 1
1.4. "Closing Date".................................................... 2
1.5. "Code"............................................................ 2
1.6. "Date of Termination"............................................. 2
1.7. "Expiration Date"................................................. 2
1.8. "Fiscal Year"..................................................... 2
1.9. "Good Reason"..................................................... 2
1.10. "Holding Company Act"............................................. 2
1.11. "Investor"........................................................ 2
1.12. "Initial Public Offering"......................................... 2
1.13. "Interest"........................................................ 2
1.14. "Interest Transfer"............................................... 2
1.15. "Member".......................................................... 3
1.16. "Operating Agreement"............................................. 3
1.17. "Option".......................................................... 3
1.18. "Person".......................................................... 3
1.19. "Proprietary Rights".............................................. 3
1.20. "Public Offering"................................................. 3
1.21. "Release"......................................................... 3
1.22. "Salary".......................................................... 3
1.23. "Subsidiary"...................................................... 3
1.24. "Substituted Member".............................................. 3
2. EMPLOYMENT.............................................................. 3
2.1. Agreement......................................................... 3
2.2. Expiration Date................................................... 4
3. POSITION AND DUTIES..................................................... 4
4. COMPENSATION............................................................ 4
4.1. Salary............................................................ 4
4.2. Business Expenses................................................. 4
4.3. Fringe Benefits................................................... 4
4.4. Vacations......................................................... 5
5. OFFICES; SUBSIDIARIES AND AFFILIATES.................................... 5
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6. NONCOMPETITION.......................................................... 5
6.1. Restriction on Competitive Activities............................. 5
6.2. Restriction on Taking Employees or Customers...................... 5
7. UNAUTHORIZED DISCLOSURE; INVENTIONS..................................... 6
7.1. Unauthorized Disclosure........................................... 6
7.2. Proprietary Rights................................................ 6
8. TERMINATION............................................................. 7
8.1. Death............................................................. 7
8.2. Incapacity........................................................ 7
8.3. Termination by the Executive for Good Reason...................... 7
8.4. Cause............................................................. 8
8.5. Termination by the Company Other than for Cause................... 8
8.6. Termination by the Executive Other than for Good Reason........... 8
8.7. Date of Termination; Term of Employment........................... 8
9. COMPENSATION UPON TERMINATION........................................... 9
9.1. Death............................................................. 9
9.2. Incapacity........................................................ 9
9.3. Cause............................................................. 9
9.4. Termination by the Executive Other than for Good Reason........... 9
9.5. Good Reason Termination or Termination by the Company
Other than for Cause............................................. 9
9.6. Post-Termination Obligations Generally............................ 10
10. WITHHOLDING............................................................. 10
11. NOTICES................................................................. 10
12. MISCELLANEOUS........................................................... 11
13. VALIDITY................................................................ 12
14. COUNTERPARTS............................................................ 12
15. ENTIRE AGREEMENT........................................................ 12
16. ASSIGNMENT.............................................................. 12
17. EFFECTIVENESS........................................................... 12
EXHIBIT A: RELEASE OF CLAIMS
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EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (this "Agreement") is made as of August 6, 1997
between Green Mountain Energy Resources L.L.C., a Delaware limited liability
company (the "Company"), and [name of employee] (the "Executive").
Recitals
1. The Executive possesses valuable experience and knowledge in the
business and affairs of electric utility companies and their marketing policies,
methods, personnel and operations.
2. The Company desires to employ the Executive and to assure itself of
the Executive's continued employment in an executive capacity.
3. The Executive is willing to commit to serve the Company on the terms
herein provided.
NOW, THEREFORE, the parties agree as follows:
1. DEFINITIONS. Terms defined in this Agreement other than in this Section 1
are used herein as so defined, and the following terms shall have the following
respective meanings:
1.1 "Affiliate" shall mean with respect to any Person, a Person which,
directly or indirectly, controls or is controlled by or is under common control
with such Person, and includes, in the case of any Person which is an
individual, any parent, grandparent, sibling, child, grandchild, or spouse of
such Person or any of the foregoing persons, or any trust established for the
benefit of any such person or any partnership or corporation controlled by any
such person. For purposes of this Agreement, the term "control" (including the
terms "controlled by" and "under common control with") means possession, direct
or indirect, of the power to direct or cause the direction of management and
policies of a Person, whether through ownership of voting securities, by
contract or otherwise; provided, however, that beneficial ownership of 10% or
more of the voting securities of any Person shall be deemed to be control.
1.2 "Cause" shall have the meaning as set forth in Section 8.4.
1.3 "Change of Control" shall mean (i) any change in the ownership of
the Company if, immediately after giving effect thereto, any Person (or group of
Persons acting in concert) other than the Investor and its Affiliates will have
the direct or indirect power to elect a majority of the members of the
management committee of the Company (the "Management Committee"); (ii) any sale
or other disposition (including without limitation by way of a merger or
consolidation of the Company with another Person) of all or substantially all of
the assets of the Company to another Person (the "Change of Control Transferee")
if, immediately after giving effect thereto, any Person (or group of Persons
acting in concert) other than the
Investor and its Affiliates will have the power to elect a majority of the
members of the board of directors (or other similar governing body) of the
Change of Control Transferee; or (iii) any change in the ownership of the
interests in the Company if, immediately after giving effect thereto, the
Investor and its Affiliates shall own Interests aggregating less than 25% of the
total Interests in the Company.
1.4 "Closing Date" shall mean the Effective Date (as defined in the
Operating Agreement) in respect of the Company and the Investor.
1.5 "Code" means the Internal Revenue Code of 1986, as amended.
1.6 "Date of Termination" shall have the meaning as set forth in Section
8.7.
1.7 "Expiration Date" shall have the meaning as set forth in Section
2.2.
1.8 "Fiscal Year" shall have the same meaning herein as in the Operating
Agreement (defined below).
1.9 "Good Reason" shall have the meaning as set forth in Section 8.3.
1.10 "Holding Company Act" means the Public Utility Company Act of 1935,
as amended, and any successor or replacement statute.
1.11 "Investor" shall have the same meaning herein as in the Operating
Agreement.
1.12 "Initial Public Offering" shall mean an initial Public Offering
registered on Form S-1 (or any successor from under the Securities Act).
1.13 "Interest" means the interest of any Member in the Company,
including (a) as set forth for each Member in Schedule I of the Operating
Agreement, (b) as subsequently established for each newly admitted Member upon
the admission of such newly admitted Member to the Company, and (c) acquired by
any Person upon the exercise by such Person of an Option or Warrant held by such
Person, in each case, as such Interest may be changed from time to time in
accordance with the provisions of the Operating Agreement.
1.14 "Interest Transfer" means any sale, assignment, gift, hypothecation,
pledge or other disposition, whether voluntary or by operation of law, of an
Interest or any portion thereof, or an interest in the profits and losses of
and/or distributions by the Company, and shall include any change in control of
any Member. The admission of any new Member, whether as a result of the
exercise by any Person of any Option or Warrant in accordance with Section 6.04
of the Operating Agreement or the result of the admission of a new Member to the
Company pursuant to Section 6.01 of the Operating Agreement shall not constitute
an Interest Transfer.
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1.15 "Member" means each Person identified as a Member on Schedule I of
the Operating Agreement and each Person who subsequently becomes a Member of the
Company in accordance with Article VI of the Operating Agreement.
1.16 "Operating Agreement" shall mean the Operating Agreement of the
Company, dated as of the date hereof among the Company and the other parties
named therein, as amended, restated, supplemented or otherwise modified.
1.17 "Option" shall mean any option granted to any Person by the Company
to acquire an Interest in the Company, and includes the term "Warrant."
1.18 "Person" shall have the same meaning herein as in the Operating
Agreement.
1.19 "Proprietary Rights" shall have the meaning as set forth in Section
7.2.
1.20 "Public Offering" shall have the same meaning herein as in the
Operating Agreement.
1.21 "Release" shall have the meaning as set forth in Section 9.5.
1.22 "Salary" shall have the meaning as set forth in Section 4.1.
1.23 "Subsidiary" shall mean any Person of which the Company (or other
specified Person) shall, directly or indirectly, own beneficially or control the
voting of at least ten percent of the outstanding capital stock (or other shares
of beneficial interest) entitled to vote generally or at least ten percent of
the partnership, joint venture or similar interests, or in which the Company (or
other specified Person) or a Subsidiary thereof shall be a general partner or
joint venturer without limited liability.
1.24 "Substituted Member" shall mean an assignee or transferee of an
Interest which has complied with the requirements of Article V of the Operating
Agreement to become a Member.
2. EMPLOYMENT.
2.1 Agreement. The Company shall employ the Executive, and the Executive
shall serve the Company, in each case subject to the terms and conditions set
forth herein.
2.2 Expiration Date. The employment of the Executive by the Company
shall be for the period commencing on the Closing Date and expiring on the date
(the "Expiration Date") that is the third anniversary of the Closing Date,
unless such employment shall have been sooner terminated as hereinafter set
forth; provided, however, that the Expiration Date shall be automatically
extended to the next occurring anniversary of the Closing Date, unless either
the Company or the Executive shall notify the other, at least one year prior to
the then Expiration Date, of its or his intention that the Expiration Date not
be so automatically extended.
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3. POSITION AND DUTIES. The Executive shall serve as [title of employee] of
the Company, and shall be accountable to, and shall have such powers, duties and
responsibilities as may from time to time be prescribed by, the Management
Committee of the Company.
The Executive shall devote his or her full business time and attention and
his or her best efforts and ability to the business and affairs of the Company
and each of its Subsidiaries and shall not engage in other business activities
(whether or not compensated) during the term of this Agreement without prior
written consent of the Management Committee of the Company that are inconsistent
with the time and attention requirements of this sentence or in violation of the
other provisions of this Agreement.
4. COMPENSATION. Subject to all of the terms and conditions hereof and to the
performance by the Executive of his or her duties and obligations to the
Company:
4.1 Salary. As compensation for services performed under and during the
term of employment hereunder, the Company shall pay the Executive a salary at a
rate of [salary of employee] per annum or such higher amount as may from time to
time be established by the Management Committee of the Company (the annual rate
of salary in effect from time to time being referred to as the "Salary"). Salary
shall be payable in accordance with the payroll practices of the Company.
4.2 Business Expenses. During the term of employment hereunder, the
Executive shall be entitled to receive prompt reimbursement by the Company for
all reasonable business expenses incurred by the Executive on behalf of the
Company or any of its Subsidiaries (in accordance with the policies and
procedures established by the Management Committee of the Company from time to
time for the Company's executive officers) in performing services hereunder,
provided that the Executive properly accounts therefor in accordance with
requirements for federal income tax deductibility and the Company's policies and
procedures.
4.3 Fringe Benefits. During the term of employment hereunder, the
Executive shall be entitled to participate in or receive benefits under any life
insurance, disability, health and accident plans, pension, retirement, deferred
compensation and supplemental pension plans or other arrangements made generally
available by the Company to its executives and key management employees, subject
to and on a basis consistent with the terms, conditions and overall
administration of such plans and arrangements. Except to the extent determined
by the Management Committee, Executive shall not be entitled to any other bonus,
equity, incentive or equity type incentive plans established by the Company.
4.4 Vacations. During the term of employment hereunder, the Executive
shall be entitled to 20 paid vacation days in each Fiscal Year and shall also be
entitled to all paid holidays given by the Company to its employees. The paid
vacation days shall be prorated for any period of service hereunder less than a
full year.
5. OFFICES; SUBSIDIARIES AND AFFILIATES. The Executive shall serve during the
term of employment hereunder, if elected or appointed thereto, in one or more
positions as an
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officer or director of the Company or any one or more of the Company's present
or future Subsidiaries or Affiliates, or as an officer, trustee, director or
other fiduciary of any pension or other employee benefit plan of the Company or
any of its Subsidiaries or Affiliates. Service in such additional positions will
be without additional compensation except for reimbursement of reasonably
related business expenses on the same terms as provided elsewhere in this
Agreement. In connection with the Executive's service in additional positions as
provided under this Section 5, the Executive shall be entitled to the benefit of
any indemnification provisions in the regulations of the Company, its
Subsidiaries or Affiliates for which the Executive serves in such an additional
position and any director and officer liability insurance coverage or insurance
against potential liability related to particular positions (e.g., ERISA
fiduciary insurance) carried by the Company or any such Subsidiary or Affiliate
of the Company for which the Executive serves as an officer or director.
6. NONCOMPETITION.
6.1 Restriction on Competitive Activities. During the term of the
Executive's employment hereunder and thereafter until the end of the twelfth
full month (sixth full month, if the Executive's employment is terminated
pursuant to Section 8.3 or Section 8.5) after the Date of Termination, the
Executive shall not, directly or indirectly, own, manage, operate, control or
participate in any manner in the ownership, management, operation or control of,
or be connected as an officer, employee, partner, director, principal,
consultant, agent or otherwise with, or have any financial interest in, or aid
or assist anyone else in the conduct of any business, venture or activity which
is the same as or competes with, any business, venture or activity which is
being conducted or is proposed to be conducted by the Company or by any division
or Subsidiary of the Company on or prior to the Date of Termination, in any area
where such business is being conducted or is proposed to be conducted by any of
the foregoing on or prior to the Date of Termination, whether or not the Company
is to be compensated for such participation. Ownership of less than five percent
of the publicly-held securities of any corporation shall not, in and of itself,
constitute a violation of this Section 6.1.
6.2 Restriction on Taking Employees or Customers. So long as the
restrictions of Section 6.1 hereto continue to apply to the Executive, the
Executive shall not, directly or indirectly, (i) recruit or otherwise seek to
induce any employees of the Company or any of its Subsidiaries to terminate
their employment or violate any agreement with, or duty to, the Company or any
of its Subsidiaries, and (ii) solicit or encourage any customer of the Company
or any of its Subsidiaries to terminate or materially diminish its relationship
with the Company or any Subsidiary of the Company or to conduct with himself or
any other Person, any business, venture or activity which such customer has
conducted at any time with the Company or any of its Subsidiaries or any of
their respective successors.
7. UNAUTHORIZED DISCLOSURE; INVENTIONS.
7.1 Unauthorized Disclosure. The Executive shall not, without the
written consent of the Management Committee of the Company, disclose to any
Person, other than an employee or professional adviser of the Company or other
Person to whom disclosure is in the reasonable judgment of the Executive
necessary or appropriate in connection with the
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performance by the Executive of his or her duties as an executive officer of the
Company, any information the disclosure of which the Executive knows, or in the
exercise of reasonable care should know, may be damaging to, or otherwise
adverse to the interests of, the Company or any of its Subsidiaries or
Affiliates; provided, however, that such information shall not include any
information known generally to the public (other than as a result of
unauthorized disclosure by the Executive); and provided, further, that the
Executive's duties under this Section 7.1 shall not extend to any disclosure
that may be required by law in connection with any judicial or administrative
proceeding or inquiry. The Executive understands and agrees that the
restrictions of this Section 7.1 shall continue to apply after the Executive's
employment terminates, regardless of the reason for such termination.
7.2 Proprietary Rights. Any and all inventions, discoveries,
developments, methods, processes, compositions, works, supplier and customer
lists (including without limitation information relating to the generation and
updating thereof), concepts and ideas (whether or not patentable or
copyrightable) conceived, made, developed, created or reduced to practice by the
Executive (whether at the request or suggestion of the Company or otherwise,
whether alone or in conjunction with others, and whether during regular hours of
work or otherwise) prior to or during the term of his employment by the Company,
which may be directly or indirectly useful in, or relate to, the business,
ventures or other activities of or products manufactured or sold by the Company
or any of its Subsidiaries or Affiliates or any business or products
contemplated by the Company or any of its Subsidiaries or Affiliates while the
Executive was or is an employee, officer, director, or member or stockholder of
the Company (collectively, "Proprietary Rights"), shall be promptly and fully
disclosed by the Executive to the President or the Management Committee of the
Company and shall be the Company's exclusive property as against the Executive
and his or her successors, heirs, devisees, legatees and assigns, and the
Executive hereby assigns to the Company his or her entire right, title and
interest therein and shall promptly deliver to the Company all papers, drawings,
models, data and other material relating to any of the foregoing Proprietary
Rights conceived, made, developed, created or reduced to practice by him as
aforesaid. All copyrightable Proprietary Rights shall be considered "works made
for hire."
The Executive shall, upon the Company's request and without any payment
therefor, execute any documents necessary or advisable in the opinion of the
Company's counsel to assign, and confirm the Company's title in, his or her
entire right, title and interest in the foregoing Proprietary Rights and to
direct issuance of patents or copyrights to the Company with respect to such
Proprietary Rights as are the Company's exclusive property as against the
Executive and his or her successors, heirs, devisees, legatees and assigns under
this Section 7.2 or to vest in the Company title to such Proprietary Rights as
against the Executive and his or her successors, heirs, devisees, legatees and
assigns, the expense of securing any such patent or copyright, however, to be
borne by the Company.
8. TERMINATION.
8.1 Death. The Executive's employment hereunder shall terminate upon
death.
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8.2 Incapacity. If the Executive shall have been unable to perform his
or her duties hereunder by reason of any physical or mental illness, injury or
other incapacity (i) for any period of 90 consecutive days or (ii) for a total
of 150 days in any period of 12 consecutive calendar months, in the reasonable
judgment of the Management Committee of the Company, after appropriate
consultation with such experts as the Management Committee of the Company may
deem necessary or advisable, the Company may terminate the Executive's
employment hereunder by written notice to the Executive. The Executive shall
make his or her personal medical records available to the Management Committee
of the Company and such experts for purposes of determining whether the
Executive's employment hereunder may be terminated pursuant to this Section 8.2.
8.3 Termination by the Executive for Good Reason. The Executive may
terminate his or her employment hereunder upon not less than 30 days' prior
written notice to the Company for Good Reason. For purposes of this Agreement,
"Good Reason" shall mean (i) failure of the Company to continue the Executive in
the position of Vice President, Marketing (ii) willful and continued failure of
the Company to provide the Executive the Salary and benefits in accordance with
Section 4 hereof, (iii) the failure of the Company to withdraw a written request
to the Executive to change the location of his principal residence to outside of
the metropolitan area in which such residence is located on the Closing Date
within 30 days following the Company's receipt of a written notice of decline of
such request from the Executive; provided that the Executive shall have
delivered such written notice of decline within 30 days of the delivery of the
Company's request; or (iv) a material diminution in the nature of the
Executive's duties, responsibilities or reporting relationships without his or
her consent which shall have occurred no more than 30 days prior to the giving
of the written notice referred to in the immediately preceding sentence; it
being understood and agreed that neither a Change of Control (in and of itself)
nor the diminution of the business of the Company or any of its Subsidiaries or
other Affiliates shall be the basis for termination of the Executive's
employment under this Section 8.3.
8.4 Cause. The Company may terminate the Executive's employment
hereunder for Cause at any time upon written notice to the Executive. For the
purposes of this Agreement, the Company shall have "Cause" to terminate the
Executive's employment hereunder upon (i) the Executive's breach of any of the
obligations set forth in Sections 6 and 7 of this Agreement, or (ii) conduct of
the Executive which constitutes breach of any of the obligations set forth in
this Agreement (except to the extent addressed in clause (i) above) that
continues for a period of 30 days after the Company has given written notice to
the Executive that it intends to terminate the Executive's employment hereunder
pursuant to this clause (ii) if such conduct continues, or (iii) the Executive's
willful failure to perform his or her duties or responsibilities in a manner
prescribed by the Management Committee or willful breach of any fiduciary duty
as an officer or director of the Company or any of its Subsidiaries or
Affiliates, or as an officer, trustee, director or other fiduciary of any
pension or employee benefit plan of the Company or its Subsidiaries or
Affiliates, or (iv) the Executive's commission of a felony involving fraud,
personal dishonesty or moral turpitude, or (v) other conduct by the Executive
that is materially harmful to the business interests of the Company or any of
its Subsidiaries or Affiliates that continues for a period of 30 days after the
Company has given written notice to the Executive that it intends to terminate
the Executive's employment hereunder pursuant to
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this clause (v) if such conduct continues or if, in the case of conduct not
completely within the Executive's control, there has not been a good faith
effort to discontinue such conduct, in the case of clauses (ii) and (v) hereof,
as may be determined by the Management Committee of the Company in its
reasonable judgment, but only after a meeting of the Management Committee of the
Company at which the Executive has had an opportunity to be heard.
8.5 Termination by the Company Other than for Cause. The Company may
terminate the Executive's employment hereunder other than for Cause at any time
upon written notice to the Executive.
8.6 Termination by the Executive Other than for Good Reason. The
Executive may terminate his or her employment hereunder at any time upon 30
days' prior written notice to the Company. In the event of termination of the
Executive pursuant to this Section 8.6, the Management Committee of the Company
may elect to waive the period of notice, or any portion thereof.
8.7 Date of Termination; Term of Employment. The term "Date of
Termination" shall mean the earlier of (i) the Expiration Date or (ii) if the
Executive's employment is terminated (A) by death, the date of death, or (B) for
any other reason set forth in this Section 8, the date on which such termination
is to be effective, consistent with the applicable provision hereof, pursuant to
the notice of termination given by the party terminating the employment
relationship in accordance with this Section 8. For all purposes of this
Agreement, references to the "term" of the Executive's employment hereunder
shall mean the period commencing on the Closing Date and ending on the Date of
Termination.
9. COMPENSATION UPON TERMINATION.
9.1 Death. Notwithstanding any other provision of this Agreement, if the
Executive's employment shall be terminated by reason of death, the Company shall
pay to such Person as the Executive shall have designated in a notice filed with
the Company, or, if no such Person shall have been designated, to the
Executive's estate his or her Salary through the Date of Termination at the rate
in effect at the time of death.
9.2 Incapacity. Notwithstanding any other provision of this Agreement,
if the Executive's employment shall be terminated by reason of incapacity
pursuant to Section 8.2, the Company shall continue to pay the Executive his or
her Salary through the Date of Termination at the rate in effect at the time the
notice of termination is given as provided under Section 8.2 hereof.
9.3 Cause. Notwithstanding any other provision of this Agreement, if the
Company shall terminate the Executive's employment for Cause, the Company shall
have no further obligations to the Executive under this Agreement other than
payment of his or her Salary through the Date of Termination.
9.4 Termination by the Executive Other than for Good Reason.
Notwithstanding any other provision of this Agreement, if the Executive shall
terminate his or her employment
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pursuant to Section 8.6 hereof, the Company shall have no further obligations to
the Executive under this Agreement other than payment of Salary through the Date
of Termination at the rate in effect at the time the notice of termination is
given.
9.5 Good Reason Termination or Termination by the Company Other than for
Cause. If the Company shall terminate the Executive's employment pursuant to
Section 8.5 hereof or if the Executive shall terminate his or her employment
pursuant to Section 8.3 hereof, then the Company shall pay to the Executive: (i)
Salary through the Date of Termination at the rate in effect at the time notice
of termination is given; and (ii) until the earliest to occur of (x) the
Expiration Date, (y) the end of the twelfth full calendar month following the
Date of Termination and (z) the date the Executive commences other substantially
full-time employment (including without limitation self-employment or engaging
in an enterprise as a sole proprietor or partner), severance at a rate equal to
the Salary in effect at the time notice of termination is given; provided,
however, that any amounts earned by the Executive from self-employment or
consulting undertaken other than on a substantially full-time basis shall reduce
the amount of any severance payable. So long as severance is to be paid under
clause (ii) of the immediately preceding sentence, the Company shall, if the
Executive was participating in any group medical and dental insurance plans
pursuant to Section 4.3 hereof immediately prior to the effectiveness of his or
her termination of employment hereunder and subject to any employee contribution
applicable to the Executive immediately prior to such effectiveness, continue to
contribute to the cost of the Executive's participation in such group medical
and dental insurance plans, provided that the Executive is entitled to continue
such participation under applicable law and plan terms. If the Executive ceases
to be eligible for continued participation in any such plans, the Company will
pay the Executive the amount of the premiums that it would otherwise have paid
to the insurers for the Executive's coverage pursuant to the immediately
preceding sentence had the Executive continued to be so eligible. The
obligations of the Company to the Executive under this Section 9.5 (other than
clause (i) of the first sentence of this Section 9.5) are conditioned upon the
Executive's signing a release of claims in the form attached hereto as Exhibit A
(the "Release") within 21 days of the date on which notice of termination is
given and upon the Executive's not revoking the release thereafter. All
severance payments under this Section 9.5 will be in the form of salary
continuation, payable in accordance with the normal payroll practices of the
Company and will begin at the Company's next regular payroll period following
the effective date of the release, but shall be retroactive to the Date of
Termination. Notwithstanding any provision of this Agreement, if the Company
shall be dissolved or its business and affairs wound up, the right of the
Executive to severance compensation and post-termination benefits shall be
limited to six months' Salary.
9.6 Post-Termination Obligations Generally. If the term of the
Executive's employment hereunder shall expire by reason of the occurrence of the
Expiration Date, the Company shall have no further obligations to the Executive
in respect of the compensation or benefits to be provided under this Agreement
following expiration of the term of the Executive's employment hereunder by
reason of the occurrence of the Expiration Date. If the term of the Executive's
employment hereunder shall expire other than by reason of the occurrence of the
Expiration Date, the Company shall have no obligation to the Executive except as
specifically provided in this Section 9, and performance by the Company of any
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obligation specifically provided in this Section 9 shall constitute full
settlement of any claim that the Executive may have on account of such
termination against the Company and its Affiliates and all of their respective
past and present officers, directors, stockholders, controlling Persons,
employees, agents, representatives, successors and assigns and all other others
connected with any of them, both individually and in their official capacities
in respect of the compensation or benefits to be provided under this Agreement.
10. WITHHOLDING. All payments made by the Company under this Agreement shall be
net of any tax or other amounts required to be withheld by the Company under any
applicable law or legal requirement.
11. NOTICES. All notices, requests and demands to or upon the parties hereto to
be effective shall be in writing, by facsimile, by overnight courier or by
registered or certified mail, postage prepaid and return receipt requested, and
shall be deemed to have been duly given or made upon: (i) delivery by hand, (ii)
one business day after being sent by overnight courier; or (iii) in the case of
transmission by facsimile, when confirmation of receipt is obtained from the
party to whom such notice is directed. Such communications shall be addressed
and directed to the parties as follows (or to such other address as either party
shall designate by giving like notice of such change to the other party):
If to the Executive:
[address of employee]
If to the Company:
Green Mountain Energy Resources L.L.C.
Box 2206
00 Xxxxx Xxxxxxxx Xxxxx
Xxxxx Xxxxxxxxxx, XX 00000-0000
Attention: Xx. Xxxxxxx X. Xxxx
Telecopy: 000-000-0000
with a copy to:
Xxxxxxx X. Xxxxxx
Suite 1000
000 Xxxxxxxx Xxxxx
Xxxxxx, Xxxxx 00000
Telecopy: 000-000-0000
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12. MISCELLANEOUS. No provision of this Agreement may be modified, waived or
discharged unless such waiver, modification or discharge is approved by the
Management Committee of the Company and agreed to in writing signed by the
Executive and such officer as may be specifically authorized by the Management
Committee of the Company in connection with such approval. No waiver by either
party hereto at any time of compliance with or of any breach by the other party
hereto of any condition or provision of this Agreement to be performed by such
other party shall be deemed a waiver of 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 which are not set forth
expressly in this Agreement. The validity, interpretation, construction and
performance of this Agreement and the legal relations created thereby shall be
governed by the domestic substantive laws of the State of Vermont without giving
effect to any choice or conflict of laws provision or rule that would cause the
application of the domestic substantive laws of any other jurisdiction. The
Executive acknowledges and agrees that, because the Company's legal remedies,
may be inadequate in the event of a breach of, or other failure to perform, by
the Executive, any of the covenants and agreements set forth in Sections 6 and 7
hereof, the Company may, in addition to obtaining any other remedy or relief
available to it (including without limitation damages at law), enforce the
provisions of said Sections 6 and 7 by injunction and other equitable relief.
13. VALIDITY. In the event that any provision hereof would, under applicable
law, be invalid or unenforceable, such provision shall, to the extent permitted
under applicable law, be construed by modifying or limiting it so as to be valid
and enforceable to the maximum extent possible under applicable law. The
provisions of this Agreement are severable, and in the event that any provision
hereof should be held invalid or unenforceable in any respect, it shall not
invalidate, render unenforceable or otherwise affect any other provision hereof.
14. COUNTERPARTS. This Agreement may be executed in any one or more
counterparts, each of which shall be deemed to be an original but all of which
together shall constitute one and the same instrument.
15. ENTIRE AGREEMENT. This Agreement, along with the Interest Option Agreement
between the Executive and the Company of even date herewith, constitutes the
entire agreement between the parties hereto, and supersedes any and all prior
communications, agreements and understandings, written or oral, with respect to
the terms and conditions of the Executive's employment with the Company.
16. ASSIGNMENT. This Agreement shall inure to the benefit of and be binding
upon (i) the Executive, his or her personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees and legatees and (ii)
the Company and its successors (including, without limitation, by means of
reorganization, merger, consolidation or liquidation) and permitted assigns.
The Company may assign this Agreement to any Subsidiary or to any successor of
the Company by reorganization, merger, consolidation or liquidation and any
transferee of all or substantially all of the business or assets of the Company
or of any division or line of business of the Company with which the Executive
is at
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any time associated. The Company requires the personal services of the Executive
hereunder and the Executive may not assign this Agreement.
17. EFFECTIVENESS. This Agreement shall only become effective upon the Closing
Date.
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IN WITNESS WHEREOF, the parties hereto have hereunto set their hands under
seal, as of the date first above written.
------------------------------
[name of employee]
GREEN MOUNTAIN ENERGY RESOURCES L.L.C.
By: /s/ Xxxxxxx X. Xxxx
---------------------------
Name: Xxxxxxx X. Xxxx
------------------
Title: President
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EXHIBIT A
RELEASE OF CLAIMS
FOR AND IN CONSIDERATION OF the special payments and benefits to be
provided in connection with the termination of my employment in accordance with
the terms of the Employment Agreement between me and Green Mountain Energy
Resources L.L.C. (the "Company") dated as of August 6, 1997 (the "Employment
Agreement"), I, on my own behalf and on behalf of my personal or legal
representatives, executors, administrators, successors, heirs, distributees,
devisees and legatees and all others connected with me, hereby release and
forever discharge the Company and its Affiliates (as that term is defined in the
Employment Agreement) and all of their respective past and present members,
officers, directors, stockholders, controlling persons, employees, agents,
representatives, successors and assigns and all others connected with any of
them (all collectively, the "Released"), both individually and in their official
capacities, from any and all rights, liabilities, claims, demands and causes of
action of any type (all collectively "Claims") which I have had in the past, now
have, or might now have, through the date of my signing of this release of
Claims, in any way resulting from, arising out of or connected with my
employment or its termination or pursuant to any federal, state, foreign or
local employment law, regulation or other requirement (including without
limitation Title VII of the Civil Rights Act of 1964, the Age Discrimination in
Employment Act, the Americans with Disabilities Act, and the fair employment
practices laws of the state or states in which I have been employed by the
Company, each as amended from time to time); provided, however, that the
foregoing release shall not apply to any right explicitly set forth in the
Employment Agreement to special payments and benefits to be provided in
connection with the termination of my employment.
In signing this Release of Claims, I acknowledge that I have had at least
21 days from the date of notice of termination of my employment to consider the
terms of this Release of Claims and that such time has been sufficient; that I
am encouraged by the Company to seek the advice of an attorney prior to signing
this Release of Claims; and that I am signing this Release of Claims voluntarily
and with a full understanding of its terms.
I understand that I may revoke this Release of Claims at any time within
seven days of the date of my signing by written notice to the Company and that
this Release of Claims will take effect only upon the expiration of such seven-
day revocation period and only if I have not timely revoked it.
Intending to be legally bound, I have signed this Release of Claims under
seal as of the date first written above.
Signature:
----------------------------------------
[Name of Executive]
Date Signed:
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