Exhibit 10(iii)(34)
EMPLOYMENT AGREEMENT
AGREEMENT by and between CH Energy Group Inc. ("Energy Group"), a New
York corporation, and ----------------- (the "Executive"), dated as of the -----
day of ---------, 2005.
The Board of Directors of Energy Group (the "Board") has determined
that it is in the best interests of Energy Group and its shareholders to assure
that Energy Group will have the continued dedication of the Executive,
notwithstanding the possibility, threat or occurrence of a Change of Control (as
defined below) of Energy Group. 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 Energy Group
currently and in the event of any threatened or pending Change of Control, and
to provide the Executive with compensation and benefits arrangements upon a
Change of Control which ensure that the compensation and benefits 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 has
caused Energy Group to enter into this Agreement with the Executive.
NOW, THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:
1. This Employment Agreement shall be between Energy Group and the
Executive named above for all periods during which the Executive serves in the
capacity as an officer of Energy Group or any of its affiliated companies. This
Agreement replaces and supercedes the Employment Agreement between Energy Group
and the Executive dated _________, _____.
2. Certain Definitions.
(a) As used in this Agreement, "Energy Group" shall mean CH
Energy Group, Inc. 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.
(b) As used in this Agreement, the term "affiliated companies"
shall include any company controlled by, controlling or under common control
with Energy Group.
(c) The "Effective Date" shall mean the first date during the
Change of Control Period (as defined in Section 2(d)) on which a Change of
Control (as defined in Section 3) occurs. Anything in this Agreement to the
contrary notwithstanding, if a Change of Control occurs and if the Executive's
employment with Energy Group or any of its affiliated companies is terminated
prior to the date on which the Change of Control occurs, and if it is reasonably
demonstrated by the Executive that such termination of employment (i) was at the
request of a third party who has taken steps reasonably calculated to effect a
Change of Control or (ii) otherwise arose in connection with or anticipation of
a Change of Control, then for all purposes of this Agreement the "Effective
Date" shall mean the date immediately prior to the date of such termination of
employment.
(d) The "Change of Control Period" shall mean the period
commencing on the date hereof and ending on the following July 31, which July 31
and each annual anniversary thereof shall be hereinafter referred to as the
"Renewal Date". Unless previously terminated, the Change of Control Period shall
be automatically extended so as to terminate one year from such Renewal Date.
Notwithstanding the foregoing, this Agreement may be terminated by either the
Executive or Energy Group or any of its affiliated companies at any time prior
to the Effective Date by providing 60 days' written notice to the other party,
in which case the Executive shall have no further rights under this Agreement;
provided, that such a notice shall be null and void if it is reasonably
demonstrated by the Executive that such notice was given (i) at the request of a
third party who has taken steps reasonably calculated to effect a Change of
Control or (ii) otherwise in connection with or anticipation of a Change of
Control.
(e) The "Multiple" shall mean (i) three if the Executive's
Date of Termination (as defined herein) occurs on or prior to the first
anniversary of the Effective Date, (ii) two if the Executive's Date of
Termination occurs after the first anniversary of the Effective Date but on or
prior to the second anniversary of the Effective Date, and (iii) one if the
Executive's Date of Termination occurs after the second anniversary of the
Effective Date but on or prior to the third anniversary of the Effective Date.
3. Change of Control. For the purpose of this Agreement, a "Change of
Control" 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 "Exchange Act")) (a "Person") of beneficial ownership
(within the meaning of Rule 13d-3 promulgated under the Exchange Act) of 20% or
more of either (x) the then outstanding shares of common stock of Energy Group
(the "Outstanding Energy Group Common Stock") or (y) the combined voting power
of the then outstanding voting securities of Energy Group entitled to vote
generally in the election of directors (the "Outstanding Energy Group 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 Energy Group, (ii) any acquisition by Energy Group,
(iii) any acquisition by any employee benefit plan (or related trust) sponsored
or maintained by Energy Group or its affiliated companies or (iv) any
acquisition by any corporation pursuant to a transaction which complies with
clauses (i), (ii) and (iii) of subsection (c) of this Section 3; or
(b) Individuals who, as of the date hereof, constitute the
Board (the "Incumbent 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 Energy Group'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
(c) Consummation of a reorganization, merger or consolidation
or sale or other disposition of all or substantially all of the assets of Energy
Group (a "Business 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 Energy Group Common
Stock and Outstanding Energy Group Voting Securities immediately prior to such
Business Combination beneficially own, directly or indirectly, more than 60% 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 Energy Group or all or
substantially all of Energy Group's assets either directly or through one or
more of its affiliated companies) in substantially the same proportions as their
ownership, immediately prior to such Business Combination of the Outstanding
Common Stock and Outstanding Energy Group 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 Energy Group or
such corporation resulting from such Business Combination) beneficially owns,
directly or indirectly, 20% or more of, respectively, the then outstanding
shares of common stock 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 of 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 Energy Group of a complete
liquidation or dissolution of Energy Group.
4. Employment Period. Energy Group hereby agrees to continue, or cause
to be continued, the Executive in its employ, or in the employ of any of its
affiliated companies, and the Executive hereby agrees to remain in the employ of
Energy Group or any of its affiliated companies subject to the terms and
conditions of this Agreement, for the period commencing on the Effective Date
and ending on the third anniversary of such date (the "Employment Period").
5. Terms of Employment.
(a) Position and Duties.
(i) During the Employment Period, the Executive's
authority, duties and responsibilities shall, in the aggregate, be at least
commensurate in all material respects with the most significant of those
exercised and assigned at any time during the 120-day period immediately
preceding the Effective Date, and neither a reduced scope of the Executive's
responsibilities resulting from the fact that the Change of Control has created
a larger organization, nor a change in the Executive's position (including
status, offices, titles and reporting requirements) shall be the sole basis for
determining whether the requirements of this Section 5(a)(i) are met.
(ii) During the Employment Period, the Executive's
services shall be performed at the location where the Executive was employed
immediately preceding the Effective Date or any office or location less than
50 miles from such location.
(iii) 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 Energy Group or any of its affiliated
companies 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 serve on civic or charitable boards or committees, so long as such
activities do not significantly interfere with the performance of the
Executive's responsibilities as an employee of Energy Group or any of its
affiliated companies 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
Energy Group or any of its affiliated companies.
(b) Compensation.
(i) Base Salary. During the Employment Period, the
Executive shall receive an
annual base salary ("Annual Base Salary"), which shall be paid at a monthly
rate, at least equal to twelve times the highest monthly base salary paid or
payable, including any base salary which has been earned but deferred, to the
Executive by Energy Group or any of its affiliated companies in respect of the
twelve-month period immediately preceding the month in which the Effective Date
occurs. During the Employment Period, the Annual Base Salary shall be reviewed
no more than 12 months after the last salary increase awarded to the Executive
prior to the Effective Date and thereafter at least annually. Any increase in
Annual Base 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 used in this
Agreement shall refer to Annual Base Salary as so increased.
(ii) Annual Bonus. In addition to Annual Base Salary,
the Executive shall be awarded, for each fiscal year ending during the
Employment Period, an annual bonus (the "Annual Bonus") in cash at least equal
to the average of the bonuses payable under Energy Group's Executive Annual
Incentive Plan, if applicable, or any comparable annual bonus under any
predecessor or successor plan, for the last three full fiscal years prior to
the Effective Date or if the Executive was employed for less than the last three
full fiscal years, for the fiscal years during which the Executive has been
employed by Energy Group or any of its affiliated companies immediately prior to
the Effective Date (annualized in the event that the Executive was not employed
by Energy Group or its affiliated companies for the whole of each such fiscal
year) (the "Average Annual Bonus"). Each such Annual Bonus shall be paid no
later than the end of the third month of the fiscal year next following the
fiscal year for which the Annual Bonus is awarded.
(iii) Incentive, Savings and Retirement Plans. During
the Employment Period, the Executive shall be entitled to participate in all
incentive, savings and retirement plans, practices, policies and programs
applicable generally to other peer executives of Energy Group or 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 Energy Group or 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 peer executives of Energy Group or its affiliated
companies.
(iv) 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 Energy Group or 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 peer executives of Energy Group or 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 peer executives of Energy Group or
its affiliated companies.
(v) Expenses. During the Employment Period, the
Executive shall be entitled to receive prompt reimbursement for all reasonable
expenses incurred by the Executive in accordance with the most favorable
policies, practices and procedures of Energy Group or any of 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 peer
executives of Energy Group or any of its affiliated companies.
(vi) Fringe Benefits. During the Employment Period,
the Executive shall be entitled to fringe benefits, including, without
limitation, use of an automobile and payment of related expenses, in accordance
with the most favorable plans, practices, programs and policies of Energy Group
or any of 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 peer executives of Energy Group or any of its affiliated
companies.
(vii) 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 Energy Group or any of 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 peer executives of Energy Group or any of its affiliated companies.
(viii) Certain Exclusions. In determining the
benefits provided in subclauses (i) through and including (viii) of this
paragraph (b), there shall be excluded from consideration any such benefits
provided by any of the affiliated companies during the measuring periods, if
any, referred to in such subclauses if Energy Group has elected not to enter
into Employment Agreements (of this Type) with executives of such affiliated
companies.
6. Termination of Employment.
(a) Death or Disability. The Executive's employment shall
terminate automatically upon the Executive's death during the Employment Period.
If Energy Group or any of its affiliated companies 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 16(b) of this Agreement of
its intention to terminate the Executive's employment. In such event, the
Executive's employment with Energy Group or any of its affiliated companies
shall terminate effective on the 30th day after receipt of such notice by the
Executive (the "Disability 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,
"Disability" shall mean the absence of the Executive from the Executive's duties
with Energy Group or any of its affiliated companies 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 Energy Group or its insurers and acceptable to the Executive or the
Executive's legal representative.
(b) Cause. The Executive's employment during the Employment
Period may be terminated for Cause. For purposes of this Agreement, "Cause"
shall mean:
(i) the willful and continued failure of the
Executive to perform substantially the Executive's duties with Energy
Group or any of its affiliated companies (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 or the Chief Executive Officer of Energy Group
which specifically identifies the manner in which the Board or Chief
Executive Officer believes that the Executive has not substantially
performed the Executive's duties;
(ii) the willful engaging by the Executive in illegal
conduct or gross misconduct which is materially and demonstrably
injurious to Energy Group or any of its affiliated companies;
(iii) the repeated use of alcohol by the Executive
that materially interferes with Executive's duties, use of illegal
drugs by the Executive, or a violation by the Executive of the drug
and/or alcohol policies of Energy Group or any of its affiliated
companies;
(iv) a conviction, guilty plea or plea of nolo
contendere of the Executive for any crime involving moral turpitude or
for any felony;
(v) a breach by the Executive of his fiduciary duties
of loyalty or care to Energy Group or any of its affiliated companies
or a material violation of the Code of Business Conduct and Ethics, or
similar policies, of Energy Group or any of its affiliated companies;
or
(vi) the breach by the Executive of the
confidentiality provision set forth in Section 11(a) hereof.
For purposes of this provision, no act or failure to act, on the part
of the Executive, shall be considered "willful" unless it is done, or omitted to
be done, by the Executive in bad faith or without reasonable belief that the
Executive's action or omission was in the best interests of Energy Group or any
of its affiliated companies. Any act, or failure to act, based upon authority
given pursuant to a resolution duly adopted by the Board or upon the
instructions of the Chief Executive Officer or a senior officer of Energy Group
or any of its affiliated companies based upon the advice of counsel for Energy
Group shall be conclusively presumed to be done, or omitted to be done, by the
Executive in good faith and in the best interests of Energy Group or any of its
affiliated companies. 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 entire membership 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) through and including (vi) 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, "Good Reason" shall
mean:
(i) any material reduction in the Executive's
authority, duties or responsibilities that is not permitted by Section
5(a)(i) of this Agreement, without the Executive's written consent,
excluding for this purpose an action not taken in bad faith and which
is remedied by Energy Group or any of its affiliated companies promptly
after receipt of notice thereof given by the Executive;
(ii) any failure by Energy Group or any of its
affiliated companies to comply with any of the provisions of Section
5(b) of this Agreement, other than a failure not occurring in bad faith
and which is remedied by Energy Group or any of its affiliated
companies promptly after receipt of notice thereof given by the
Executive;
(iii) Energy Group or any of its affiliated companies
requiring the Executive to be based at any office or location other
than as provided in Section 5(a)(ii) of this Agreement;
(iv) any purported termination by Energy Group or any
of its affiliated companies of the Executive's employment otherwise
than as expressly permitted by this Agreement; or
(v) any failure by Energy Group or any of its
affiliated companies to comply with and satisfy Section 12(c) of this
Agreement.
For purposes of this Section 6(c), any claim by the Executive that Good
Reason exists shall be presumed to be correct unless Energy Group establishes by
clear and convincing evidence that Good Reason does not exist.
(d) Notice of Termination. Any termination by Energy Group or
any of its affiliated companies 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 16(b) of this Agreement. For purposes of this
Agreement, a "Notice of Termination" means a written notice which (i) indicates
the specific termination 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). The failure by the Executive or Energy Group or any of its
affiliated companies to set forth in the Notice of Termination any fact or
circumstance which contributes to a showing of Good Reason or Cause shall not
waive any right of the Executive or Energy Group or any of its affiliated
companies, respectively, hereunder or preclude the Executive or Energy Group or
any of its affiliated companies, respectively, from asserting such fact or
circumstance in enforcing the Executive's or Energy Group's or any of its
affiliated company's rights hereunder.
(e) Date of Termination. "Date of Termination" means (i) if
the Executive's employment is terminated by Energy Group or any of its
affiliated companies 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 Energy Group or
any of its affiliated companies other than for Cause or Disability, the Date of
Termination shall be the date on which Energy Group or any of its affiliated
companies 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.
7. Obligations of Energy Group and its Affiliated Companies upon
Termination. (a) Good Reason; Other Than for Cause, Death or Disability. If,
during the Employment Period, Energy Group or any of its affiliated companies
shall terminate the Executive's employment other than for Cause or Disability or
the Executive shall terminate employment for Good Reason:
(i) Energy Group shall pay, or cause to be paid, to
the Executive in a lump sum in cash within 30 days after the Date of
Termination the sum of: (A) the Executive's Annual Base Salary through
the Date of Termination to the extent not theretofore paid, (B) the
product of (x) the Average Annual Bonus and (y) a fraction, the
numerator of which is the number of days in the current fiscal year
through the Date of Termination, and the denominator of which is 365
and (C) any accrued vacation pay, in each case to the extent not
theretofore paid (the sum of the amounts described in clauses (A), (B),
and (C) shall be hereinafter referred to as the "Accrued Obligations");
(ii) Energy Group shall pay, or cause to be paid, to
the Executive in twelve (12) equal monthly installments, with the first
payment due and payable 30 days after the Date of Termination, the
product of (1) the Multiple and (2) the sum of (x) the Executive's
Annual Base Salary and (y) the Average Annual Bonus;
(iii) for a number of years after the Executive's
Date of Termination equal to the Multiple, or such longer period as may
be provided by the terms of the appropriate plan, program, practice or
policy, Energy Group or any of its affiliated companies 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 5(b)(iv)
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 peer executives of Energy Group
or any of 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 the expiration of a number of years after
the Date of Termination equal to the Multiple and to have retired on
the last day of such period;
(iv) Energy Group or any of its affiliated companies
shall, at its sole expense as incurred, provide the Executive with
outplacement services from a recognized outplacement service provider,
the scope of which shall be selected by the Executive in his sole
discretion but the cost to Energy Group shall not exceed $30,000; and
(v) to the extent not theretofore paid or provided,
Energy Group or any of its affiliated companies 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
Energy Group or any of its affiliated companies (such other amounts and
benefits shall be hereinafter referred to as the "Other Benefits").
Notwithstanding the foregoing, except with respect to payments and benefits
under Sections 7(a)(i)(A), 7(a)(i)(C) and 7(a)(v), all payments and benefits
shall cease in the event Executive breaches any of his obligations under Section
11 hereof.
(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 30 days of the Date of Termination.
With respect to the provision of Other Benefits, the term Other Benefits as
utilized in this Section 7(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 Energy Group or any of
its affiliated companies to the estates and beneficiaries of peer executives of
Energy Group and any such affiliated companies under such plans, programs,
practices and policies relating to death benefits, if any, as in effect with
respect to other peer 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 peer executives of Energy
Group or any of 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 as of the Disability Effective Date, 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 30 days of the Date of
Termination. With respect to the provision of Other Benefits, the term Other
Benefits as utilized in this Section 7(c) shall include, and the Executive shall
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
Energy Group or any of 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 generally with respect to other
peer 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 generally
with respect to other peer executives of Energy Group or any of 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 (x) his Annual Base Salary through
the Date of Termination, (y) the amount of any compensation previously deferred
by the Executive, and (z) 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 30 days
of the Date of Termination.
8. 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 Energy Group or any of its affiliated
companies and for which the Executive may qualify, nor, subject to Section
16(f), shall anything herein limit or otherwise affect such rights as the
Executive may have under any contract or agreement with Energy Group 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 Energy Group 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 as explicitly modified by this Agreement.
9. Full Settlement. Except as otherwise provided in Section 7(a)
hereof, Energy Group's obligation to make the payments provided for in this
Agreement and otherwise to perform its obligations hereunder shall not be
affected by any set-off, counterclaim, recoupment, defense or other claim, right
or action which Energy Group or any of its affiliated companies may have against
the Executive or others. In no event shall the Executive be obligated to seek
other employment or take any other action by way of mitigation of the amounts
payable to the Executive under any of the provisions of this Agreement and such
amounts shall not be reduced whether or not the Executive obtains other
employment. Except as otherwise provided in this Section 9 or Section 11 of this
Agreement, Energy Group agrees to pay as incurred, to the full extent permitted
by law, all legal fees and expenses which the Executive may reasonably incur,
including the legal fees and expenses of any arbitration proceeding, as a result
of any contest (regardless of the outcome thereof) by Energy Group or any of its
affiliated companies, the Executive or others of the validity or enforceability
of, or liability under, any provision of this Agreement or any guarantee of
performance thereof (including as a result of any contest by the Executive about
the amount of any payment pursuant to this Agreement), plus in each case
interest on any delayed payment at the applicable Federal rate provided for in
Section 7872(f)(2)(A) of the Internal Revenue Code of 1986, as amended (the
"Code"). Notwithstanding the foregoing, Energy Group shall not be obligated to
pay any legal fees or expenses incurred by the Executive in any contest in which
the trier of fact determines that the Executive's position was frivolous or
maintained in bad faith.
10. Certain Additional Payments by Energy Group or its Affiliated
Companies.
(a) Anything in this Agreement to the contrary notwithstanding
and except as set forth below, in the event it shall be determined that any
payment or distribution by Energy Group or any of its affiliated companies to or
for the benefit of the Executive (whether paid or payable or distributed or
distributable pursuant to the terms of this Agreement or otherwise, but
determined without regard to any additional payments required under this Section
10) (a "Payment") would be subject to the excise tax imposed by Section 4999 of
the Code or any interest or penalties are incurred by the Executive with respect
to such excise tax (such excise tax, together with any such interest and
penalties, are hereinafter collectively referred to as the "Excise Tax"), then
the Executive shall be entitled to receive an additional payment (a "Gross-Up
Payment") in an amount such that after payment by the Executive of all taxes
(including any interest or penalties imposed with respect to such taxes),
including, without limitation, any income taxes (and any interest and penalties
imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment,
the Executive retains an amount of the Gross-Up Payment equal to the Excise Tax
imposed upon the Payments. Notwithstanding the foregoing provisions of this
Section 10(a), if it shall be determined that the Executive is entitled to a
Gross-Up Payment, but that the Payments do not exceed 110% of the greatest
amount (the "Reduced Amount") that could be paid to the Executive such that the
receipt of Payments would not give rise to any Excise Tax, then no Gross-Up
Payment shall be made to the Executive and the Payments, in the aggregate, shall
be reduced to the Reduced Amount.
(b) Subject to the provisions of Section 10(c), all
determinations required to be made under this Section 10, including whether and
when a Gross-Up Payment is required and the amount of such Gross-Up Payment and
the assumptions to be utilized in arriving at such determination, shall be made
by a major accounting firm with expertise in such matters designated by the
Executive (the "Accounting Firm") which shall provide detailed supporting
calculations both to Energy Group and the Executive within 15 business days of
the receipt of notice from the Executive that there has been a Payment, or such
earlier time as is requested by Energy Group. All fees and expenses of the
Accounting Firm shall be borne solely by Energy Group. Any Gross-Up Payment, as
determined pursuant to this Section 10, shall be paid, or caused to be paid, by
Energy Group to the Executive within five days of the receipt of the Accounting
Firm's determination. Any determination by the Accounting Firm shall be binding
upon Energy Group and the Executive. As a result of the uncertainty in the
application of Section 4999 of the Code at the time of the initial determination
by the Accounting Firm hereunder, it is possible that Gross-Up Payments which
will not have been made by Energy Group should have been made ("Underpayment"),
consistent with the calculations required to be made hereunder. In the event
that Energy Group exhausts its remedies pursuant to Section 10(c) and the
Executive thereafter is required to make a payment of any Excise Tax, the
Accounting Firm shall determine the amount of the Underpayment that has occurred
and any such Underpayment shall be promptly paid, or caused to be paid, by
Energy Group to or for the benefit of the Executive.
(c) The Executive shall notify Energy Group in writing of any
claim by the Internal Revenue Service that, if successful, would require the
payment by Energy Group of the Gross-Up Payment. Such notification shall be
given as soon as practicable but no later than ten business days after the
Executive is informed in writing of such claim and shall apprise Energy Group of
the nature of such claim and the date on which such claim is requested to be
paid. The Executive shall not pay such claim prior to the expiration of the
30-day period following the date on which it gives such notice to Energy Group
(or such shorter period ending on the date that any payment of taxes with
respect to such claim is due). If Energy Group notifies the Executive in writing
prior to the expiration of such period that it desires to contest such claim,
the Executive shall:
(i) give Energy Group any information reasonably
requested by Energy Group relating to such claim,
(ii) take such action in connection with contesting
such claim as Energy Group shall reasonably request in writing from
time to time, including, without limitation, accepting legal
representation with respect to such claim by an attorney reasonably
selected by Energy Group,
(iii) cooperate with Energy Group in good faith in
order effectively to contest such claim, and
(iv) permit Energy Group to participate in any
proceedings relating to such claim;
provided, however, that Energy Group shall bear and pay, or cause to be paid,
directly all costs and expenses (including additional interest and penalties)
incurred in connection with such contest and shall indemnify and hold the
Executive harmless, on an after-tax basis, for any Excise Tax or income tax
(including interest and penalties with respect thereto) imposed as a result of
such representation and payment of costs and expenses. Without limitation on the
foregoing provisions of this Section 10(c), Energy Group shall control all
proceedings taken in connection with such contest and, at its sole option, may
pursue or forgo any and all administrative appeals, proceedings, hearings and
conferences with the taxing authority in respect of such claim and may, at its
sole option, either direct the Executive to pay the tax claimed and xxx for a
refund or contest the claim in any permissible manner, and the Executive agrees
to prosecute such contest to a determination before any administrative tribunal,
in a court of initial jurisdiction and in one or more appellate courts, as
Energy Group shall determine; provided, however, that if Energy Group directs
the Executive to pay such claim and xxx for a refund, Energy Group shall
advance, or cause to be advanced, the amount of such payment to the Executive,
on an interest-free basis and shall indemnify and hold the Executive harmless,
on an after-tax basis, from any Excise Tax or income tax (including interest or
penalties with respect thereto) imposed with respect to such advance or with
respect to any imputed income with respect to such advance; and further provided
that any extension of the statute of limitations relating to payment of taxes
for the taxable year of the Executive with respect to which such contested
amount is claimed to be due is limited solely to such contested amount.
Furthermore, Energy Group's control of the contest shall be limited to issues
with respect to which a Gross-Up Payment would be payable hereunder and the
Executive shall be entitled to settle or contest, as the case may be, any other
issue raised by the Internal Revenue Service or any other taxing authority.
(d) If, after the receipt by the Executive of an amount
advanced, or caused to be advanced, by Energy Group pursuant to Section 10(c),
the Executive becomes entitled to receive any refund with respect to such claim,
the Executive shall (subject to Energy Group's complying with the requirements
of Section 10(c)) promptly pay to Energy Group the amount of such refund
(together with any interest paid or credited thereon after taxes applicable
thereto). If, after the receipt by the Executive of an amount advanced, or
caused to be advanced, by Energy Group pursuant to Section 10(c), a
determination is made that the Executive shall not be entitled to any refund
with respect to such claim and Energy Group does not notify the Executive in
writing of its intent to contest such denial of refund prior to the expiration
of 30 days after such determination, then such advance shall be forgiven and
shall not be required to be repaid and the amount of such advance shall offset,
to the extent thereof, the amount of Gross-Up Payment required to be paid.
11. Restrictive Covenants.
(a) The Executive shall hold in a fiduciary capacity for the
benefit of Energy Group or any of its affiliated companies all secret or
confidential information, knowledge or data relating to Energy Group or any of
its affiliated companies, and their respective businesses, which shall have been
obtained by the Executive during the Executive's employment by Energy Group 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). The Executive hereby covenants and
agrees that during the Employment Period and thereafter, the Executive shall
not, without the prior written consent of Energy Group, communicate or divulge
any such information, knowledge or data to anyone other than Energy Group and
those designated by it. Notwithstanding the foregoing, the Executive or his
representatives may disclose any such information if such disclosure is
compelled by subpoena or other legal process, provided that if the Executive is
so compelled, he shall provide Energy Group prompt written notice of such
subpoena or legal process in order to permit Energy Group to seek appropriate
protective orders. The Executive agrees to contact Energy Group for written
clarification if the Executive has any question regarding what information,
knowledge or data would be considered by Energy Group to be confidential and
subject to this provision. The Executive's obligations under this Section 11(a)
are in addition to, and not in limitation of or preemption of, all other
obligations of confidentiality which the Executive may have to Energy Group or
any of its affiliated companies under general legal or equitable principles, and
federal, state or local law.
(b) The Executive agrees that for a period of one year after
his Date of Termination he will not, directly or indirectly, induce, attempt to
induce, or assist others in inducing or attempting to induce, any employee of
Energy Group or any of its affiliated companies to terminate such person's
employment relationship with Energy Group or any of its affiliated companies.
(c) The Executive acknowledges and agrees that any breach or
threatened breach of this Section 11 by him will cause injury to Energy Group
and its affiliated companies for which money damages alone will not provide an
adequate remedy; that if he commits or threatens to commit any such breach,
Energy Group or any of its affiliated companies should have the right to have
the provisions of this Section 11 specifically enforced by any court having
jurisdiction. The Executive agrees that he will not assert in any such
enforcement action that Energy Group or any of its affiliated companies have an
adequate remedy in damages; and that such rights and remedies will be in
addition to and not in lieu of any other rights or remedies available to Energy
Group or any of its affiliated companies at law or in equity. The Executive
agrees that if any court determines that he has breached this Section 11, he
shall be liable to and will pay Energy Group its reasonable legal fees and
expenses incurred in connection with such proceedings, including appeals
therefrom, and Energy Group shall not be obligated to reimburse the Executive
for the legal fees and expenses incurred by the Executive in connection with
such proceedings, including appeals therefrom. In addition, while the duration
of the covenants contained in this Section 11 will be determined generally in
accordance with their terms, if the Executive violates any of these covenants,
he agrees to an extension of such covenant on the same terms and conditions for
an additional period of time equal to the time that elapses from the
commencement of such violation to the later of (i) the termination of such
violation or (ii) the final resolution of any litigation stemming from such
violation.
(d) If any covenant contained in this Section 11, or any
portion of such covenant, is found by a court of competent jurisdiction to be
invalid or unenforceable for any reason, the Executive hereby authorizes and
requests such court to exercise its discretion to reform such covenant to the
end that he will be subject to covenants that are reasonable under the
circumstances and enforceable by Energy Group or any of its affiliated
companies. In any event, if any provision is found to be unenforceable for any
reason, such provision shall remain in force and effect to the maximum extent
allowable, all non-affected provisions shall remain fully valid and enforceable,
and such finding shall in no way affect the subsequent enforceability of any
such provision against a different employee of Energy Group.
(e) The Executive agrees that the promises and obligations
made by Energy Group in this Agreement (specifically including, but not limited
to, the payments and benefits provided for under Section 7(a) hereof (other than
payments and benefits under Sections 7(a)(i)(A), 7(a)(i)(C) and 7(a)(v))
constitute sufficient consideration for the covenants contained in this Section
11. The Executive further acknowledges that it is not Energy Group's intention
to interfere in any way with his employment opportunities, except in such
situations where the same conflict with the legitimate business interests of
Energy Group or any of its affiliated companies. The Executive agrees that he
will notify Energy Group in writing if he has, or reasonably should have, any
questions regarding the applicability of this Section 11.
12. Successors.
(a) This Agreement is personal to the Executive and without
the prior written consent of Energy Group 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 Energy Group and its successors and assigns.
(c) Energy Group 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 Energy Group to assume
expressly and agree to perform this Agreement in the same manner and to the same
extent that Energy Group would be required to perform it if no such succession
had taken place.
13. Early Termination. This agreement shall terminate as of the date
Executive becomes employed by any of the affiliated companies to which Energy
Group has elected not to enter into employment agreements (of this Type) with
executives of such affiliated companies; provided such employment becomes
effective prior to a Change of Control.
14. Arbitration. Except as otherwise provided herein, any dispute,
controversy or claim between the parties arising out of or relating to this
Agreement (or any subsequent amendments thereof or waivers thereto)
(hereinafter, a "Claim" or "Claims") shall be submitted to final and binding
arbitration. Claims which are subject to this section include, but are not
limited to, the following: (i) claims relating to this Agreement's existence,
enforceability, validity, interpretation, performance or breach, (ii) claims for
compensation or benefits, and (iii) claims of wrongful or discriminatory
termination based on any federal, state or local statute, regulation, ordinance,
tort, public policy, contract or promissory estoppel theory, including any
dispute as to the cause or reason for termination. All Claims submitted to
arbitration pursuant to this Section 14 shall be subject to the National Rules
for the Resolution of Employment Disputes of the American Arbitration
Association, effective January 1, 2004, except as hereinafter provided:
(a) A request to arbitrate a Claim must be made within 180 days of the date
the Claim arose;
(b) Energy Group shall pay any and all fees and expenses of the
arbitrator;
(c) The arbitration hearing shall be held in Poughkeepsie, New York,
unless the parties mutually agree to another location;
(d) Each party shall exchange documents to be utilized as exhibits in
the arbitration hearing and each party shall be limited to five (5) pre-hearing
depositions of no more than ten hours each, unless the arbitrator orders
additional discovery;
(e) The arbitrator shall be appointed in accordance with Rule 12 of the
above-referenced Rules of the American Arbitration Association, except that if,
for any reason, an arbitrator cannot be selected by the process described in
Rule 12, subparts (i) through (iii), the American Arbitration Association shall
submit the names of seven (7) additional arbitrators from its roster and the
parties shall select the arbitrator by alternately striking names with the party
requesting arbitration first striking; and
(f) Either party shall be entitled to seek and obtain injunctive or
other appropriate equitable relief in any federal or state court having
jurisdiction in order to enforce the arbitration provisions of this Agreement;
and Energy Group shall be entitled to seek and obtain such injunctive or other
appropriate equitable relief in order to prevent (pending arbitration) any
breach of the Restrictive Covenants set forth in Section 11 of this Agreement in
any federal or state court having jurisdiction.
Subject to paragraph (f) of this Section 14, above, it is the intention of the
parties to avoid litigation in any court of any and all Claims concerning this
Agreement, or otherwise arising from the Executive's employment with Energy
Group or its affiliate entities, and that all such claims will be subject to
this arbitration agreement. Neither party shall commence or pursue any
litigation on any claim that is or was the subject of arbitration under this
Agreement. Each party agrees that this agreement to arbitrate, and any award
arising out of any arbitration contemplated by this Agreement, are enforceable
under, and subject to, the Federal Arbitration Act, 11 U.S.C. ss. I, et seq.
Both parties consent that judgment upon any arbitration award may be entered in
any federal or state court having jurisdiction.
15. Release. Notwithstanding anything contained herein to the contrary,
Energy Group shall not be obligated to make any payment or provide any benefit
under Section 7(a) hereof (other than payments and benefits under Sections
7(a)(i)(A), 7(a)(i)(C) and 7(a)(v)), (a) unless the Executive first executes a
release, in a form provided by Energy Group, of all current or future claims,
known or unknown, against Energy Group, its affiliated companies, its officers,
directors, shareholders, employees and agents arising on or before the date of
the release, including but not limited to all claims arising out of the
Executive's employment with Energy Group or its affiliated companies or the
termination of such employment, and (b) to the extent such payment or benefit is
subject to the seven-day revocation period prescribed by the Age Discrimination
in Employment Act of 1967, as amended, or to any similar revocation period in
effect on the date of termination of the Executive's employment, such revocation
period has expired.
16. Miscellaneous.
(a) This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, without reference to
principles of conflict of laws. The captions of this Agreement are not part of
the provisions hereof and shall have no force or effect. 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:
(full address of Executive)
If to Energy Group:
CH Energy Group, Inc.
000 Xxxxx Xxxxxx
Xxxxxxxxxxxx, Xxx Xxxx 00000-0000
Attention: Chief Executive Officer
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) Energy Group 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 Energy Group's failure to insist upon
strict compliance with any provision of this Agreement or the failure to assert
any right the Executive or Energy Group may have hereunder, including, without
limitation, the right of the Executive to terminate employment for Good Reason
pursuant to Section 6(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) The Executive and Energy Group acknowledge that, except as
may otherwise be provided under any other written agreement between the
Executive and Energy Group, or any of its affiliated companies, the employment
of the Executive by Energy Group or any of its affiliated companies is "at will"
and, subject to Section 2(c) hereof, the Executive's employment may be
terminated at any time prior to the Effective Date by either the Executive or
Energy Group or any of its affiliated companies, in which case the Executive
shall have no further rights under this Agreement. From and after the Effective
Date, this Agreement shall supersede any other agreement between the parties
with respect to the subject matter hereof.
(g) To the extent applicable, it is intended that this
Agreement comply with the provisions of Section 409A of the Code, so as to
prevent the inclusion in gross income of any amounts payable or benefits
provided hereunder in a taxable year that is prior to the taxable year or years
in which such amounts or benefits would otherwise actually be distributed,
provided or otherwise made available to the Executive. This Agreement shall be
construed, administered, and governed in a manner consistent with this intent.
Any provision that would cause any amount payable or benefit provided under this
Agreement to be includible in the gross income of the Executive under Section
409A(a)(1) of the Code shall have no force and effect unless and until amended
to cause such amount or benefit to not be so includible (which amendment may be
retroactive to the extent permitted by Section 409A of the Code and may be made
by Energy Group without the consent of the Executive). In particular, to the
extent the Executive becomes entitled to receive a payment or a benefit upon an
event that does not constitute a permitted distribution event under Section
409A(a)(2) of the Code, then notwithstanding anything to the contrary in this
Agreement, such payment or benefit will be made or provided to the Executive on
the earlier of (i) the Executive's "separation from service" with Energy Group
or its affiliated companies (determined in accordance with Section 409A of the
Code); provided, however, that if the Executive is a "specified employee"
(within the meaning of Section 409A of the Code), the Executive's date of
payment shall be made on the date which is 6 months after the date of the
Executive's separation from service with Energy Group or its affiliated
companies or (ii) the Executive's death. Any reference in this Agreement to
Section 409A of the Code shall also include any proposed, temporary or final
regulations, or any other guidance, promulgated with respect to such Section by
the U.S. Department of the Treasury or the Internal Revenue Service.
IN WITNESS WHEREOF, the Executive has hereunto set the Executive's hand
and, pursuant to the authorization from its Board of Directors, Energy Group has
caused these presents to be executed in its name on its behalf, all as of the
day and year first above written.
-------------------------------
(full name of Executive)
CH Energy Group, Inc.
By ______________________________
Chairman of the Board and
Chief Executive Officer
(add Central Xxxxxx Energy Services, Inc.
or Central Xxxxxx Gas & Electric
Corporation, if needed)
By ______________________________
President and Chief Operating Officer
