EMPLOYMENT AGREEMENT
This AGREEMENT, made this ___ day of _______, 1997, by and between
CONSOLIDATED HYDRO, INC. (the "Company"), which will be renamed CHI ENERGY,
INC., a Delaware corporation with its principal office at 000 Xxxxxxxxxx
Xxxxxxxxx, Xxxxxxxx, XX 00000, and _________________ ("Executive"), an
individual residing at ____________________________________________.
WHEREAS, the Company and Executive have entered into an employment
agreement, dated January 1, 1997 (the "Prior Agreement"); and
WHEREAS, in connection with the plan of reorganization of the
Company, the Company and Executive wish to enter into a revised employment
agreement whereby Executive will be employed by the Company in accordance with
the terms and conditions stated below.
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, the parties hereto agree as follows:
1. Employment. The Company agrees to employ Executive, and Executive
agrees to enter the employ of the Company, for the period stated in Section 3
hereof and upon the other terms and conditions herein provided.
2. Position and Responsibilities. The Company agrees to employ
Executive in the position of __________ and Executive agrees to serve for the
term and on the conditions hereinafter set forth. The Company will also use its
best efforts to assure Executive's election to the Board of Directors of the
Company. Executive agrees to perform such services not inconsistent with his
position as shall from time to time be assigned to him by the Chief Executive
Officer of the Company, the Company's Board of Directors, or by their respective
designees. Executive further agrees to serve as a Director of the Company and
any subsidiaries of the Company without additional compensation.
3. Term and Duties.
(a) Term of Employment. This Agreement shall become effective and
the terms of employment pursuant to this Agreement shall commence on the
effective date of the plan of reorganization with respect to the Company under
Chapter 11 of the United States Bankruptcy Code (the "Effective Date"), and will
continue through December 31, 2000, unless earlier terminated in accordance with
the provisions hereof; provided, however, that, unless the Company shall have
delivered to Ex-
ecutive written notice of its intent not to renew this Agreement prior to
January 1, in any year, commencing with January 1, 2000, the term of this
Agreement shall be automatically extended by twelve (12) months from the then
effective expiration date.
(b) Duties. During the period of his employment hereunder Executive
shall serve the Company as its __________, and except for illnesses, vacation
periods and reasonable leaves of absence, Executive shall devote all his
business time, attention, skill and efforts to the faithful performance of his
duties hereunder; provided, however, that with the approval of the Board of
Directors of the Company, from time to time, Executive may serve, or continue to
serve, on the boards of directors of, and hold any other offices or positions
in, companies or organizations, which, in the Board's judgment, will not present
any conflict of interest with the Company or any of its subsidiaries or
affiliates or divisions, or materially affect the performance of Executive's
duties pursuant to this Agreement.
So long as Executive is ______________________, he will discharge
all duties incidental to such office and such further duties as may be
reasonably assigned to him from time to time by the Chief Executive Officer of
the Company, the Company's Board of Directors, or by their respective designees.
(c) Place of Employment. Executive shall perform his duties
hereunder at the Company's Fairfield County, Con- necticut office, and shall
travel to the Company's other offices as may be necessary or appropriate for him
to perform his duties hereunder.
4. Compensation and Reimbursement of Expenses.
(a) Salary. For all services rendered by Executive as
______________________ during his employment under this Agreement, the Company
shall pay Executive as compensation a salary at the annual rates of $_________
in 1997, and $________ per calendar year thereafter. During the period of this
Agreement following 1998, Executive's salary shall be reviewed at least
annually, with the first such annual review in December, 1998. Such review shall
be conducted by the Board of Directors of the Company, or a committee designated
by the Board of Directors (the "Compensation Committee"), and the Board or
Compensation Committee may increase said salary.
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(The salary payable to Executive in any year is referred to herein as the "Base
Salary" for such year.)
(b) Incentive Compensation. For each year during the term of this
Agreement following 1997, the Company shall pay Executive an incentive bonus of
up to 150% of Executive's Base Salary, at the discretion of the Compensation
Committee, upon the achievement of certain targets (which for 1998 shall be set
by the Compensation Committee by December 31, 1997, and for each year following
1998, shall be set by February 15 of such year). Executive's maximum bonus
opportunity of 150% of Base Salary shall be calculated as follows: (i) 50% for
meeting budget targets in the Industrial Infrastructure Business ("IIB"), (ii)
50% for exceeding budget targets in the IIB and (iii) 50% for meeting general
operating targets set by the Compensation Committee. Bonuses shall be payable
upon completion of the annual audit of the Company for the applicable year. In
its discretion, the Compensation Committee may pay Executive by December 31,
1997 an "emergence bonus" of up to 25% of Executive's Base Salary for 1997.
(c) Equity Plan. The Company shall grant to Executive on the
Effective Date a non-qualified stock option to purchase _______ shares of the
Company's Series A Common Stock (the "Common Stock") and an incentive stock
option to purchase 20,000 shares of Common Stock, each at an exercise price
equal to $10.00 per share, pursuant to the terms and conditions of the stock
option agreements attached hereto as Exhibits A and B.
(d) Reimbursement of Expenses. The Company shall pay or reimburse
Executive for all reasonable travel and other expenses incurred by Executive in
performing his obligations under this Agreement. The Company further agrees to
furnish Executive with a private office, private secretary, and such other
assistance and accommodations as shall be suitable to the character of
Executive's position with the Company and adequate for the performance of his
duties.
5. Participation in Benefit Plans. The payments provided in Sections
4 and 6 hereof are in addition to any benefits Executive is entitled to under
any group hospitalization, health, dental care, disability insurance, surety
bond, death benefit plan, travel and/or accident insurance, any other allowance
and/or executive compensation
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plan, including, without limitation, capital accumulation and termination pay
program, restricted or non-restricted stock purchase plan, stock option plan,
retirement income or pension plan, or other present or future group employee
benefit plan or program of the Company for which key executives are or shall
become eligible, and Executive shall be eligible to receive during the period of
his employment under this Agreement, all benefits and emoluments for which key
executives are eligible under every such plan or program in accordance with the
provisions thereof. Notwithstanding the foregoing, except as specifically
provided in Section 4 or 6 hereof (or as provided by the Company as of the
Effective Date) Executive shall not be entitled to receive any additional
benefits or awards under discretionary plans or programs of the Company unless
the Board of Directors of the Company (or the Compensation Committee) exercises
the necessary discretion to provide Executive with such benefits or awards.
6. Benefits Payable Upon Disability or Death.
(a) Disability Benefits. In the event of the disability of Executive
during the term of this Agreement, the Company shall, prior to Executive's
termination of employment and subject to Section 9 hereof, continue to pay
Executive his Base Salary and the other benefits provided in Sections 4, 5 and 6
hereof during the period of his disability; provided, however, that Executive's
disability shall be taken into account by the Compensation Committee in
determining Executive's incentive compensation under Section 4 hereof. In the
event of Executive's termination of employment for "permanent disability", the
Company shall pay Executive his Base Salary and continue to provide the health
and welfare insurance benefits provided to Executive under Section 5 hereof as
of immediately prior to his date of termination (provided Executive continues to
make all required employee contributions) through the remainder of the term of
this Agreement (pursuant to the Company's benefit plans or otherwise), but (i)
Executive shall not be entitled to payment of any further bonuses under Section
4(b), (ii) no further options or other awards shall be granted Executive under
Section 4(c) or shall vest, unless the plan or agreement under which such
options or awards are granted provides otherwise, and (iii) Executive shall be
treated as a terminated employee with respect to the Company's other benefit
plans. To the extent that disability insurance is available on Executive, the
Company shall be permitted to purchase and pay for such insurance. Receipt by
Executive of such disability benefits shall reduce by such amount the
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obligation of the Company to continue Executive's Base Salary under this Section
6(a).
The Company may terminate Executive's employment for "permanent
disability" in the event Executive is unable to perform his duties under this
Agreement as a result of physical or mental illness or injury for an aggregate
of six (6) or more months during any twelve-month period.
(b) Death Benefits. In the event of the death of Executive during
the term of this Agreement, the Company shall pay, or cause to be paid, to
Executive's designated beneficiary or beneficiaries or legal representatives a
death benefit of $1 million. Such death benefit shall be payable in cash in one
lump sum. The Company will purchase one or more term or other similar insurance
policies in amounts to provide for its obligation. To the extent that the life
of Executive is otherwise insured under any employee benefit plan of Company
(other than any travel/accident or double indemnity coverage) the obligation of
the Company under this paragraph shall be reduced by such insurance benefits. If
the Company has not previously insured the life of Executive to the extent of
the death benefit described above, this Section 6(b) will only become effective
fifteen (15) days after a determination has been made that Executive's life is
insurable.
7. Payments to Executive Upon Termination of Employment. Upon
termination of Executive's employment during the term of this Agreement,
Executive (or in the event of his death, his beneficiary, beneficiaries or legal
representatives) shall be entitled to no further compensation hereunder other
than (i) Executive's Base Salary through the date of termination, (ii) any
benefits accrued and vested under the terms of the Company's employee benefit
plans and programs and (iii) any other payments or benefits specifically
provided by this Agreement.
(a) Termination. Upon the occurrence of an event of termination (as
hereinafter defined) during the term of this Agreement, the provisions of this
Section 7(a) and Section 7(b) shall apply. As used in this Agreement, an "event
of termination" shall mean and include any one or more of the following:
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(i) The termination by the Company of Executive's full-time
employment hereunder for any reason other than pursuant to Section 7(c),
or as a result of permanent disability or mandatory retirement; or
(ii) Executive's resignation from the Company's employ, as a result
of any of the following:
A. a material and adverse change by the Company in Executive's
function, duties or responsibilities, without Executive's written
consent, which change would cause Executive's position with the
Company to become one of less dignity, responsibility, importance or
scope from the position and attributes as described in Section 2
above;
B. any liquidation or dissolution of the Company, unless the
voting common equity interests of an ongoing entity (other than a
liquidating trust) are beneficially owned, directly or indirectly,
by the Company's stockholders in substantially the same proportions
as such stockholders owned the Company's outstanding voting common
equity interests immediately prior to such liquidation or
dissolution, and such ongoing entity assumes all existing
obligations of the Company to Executive under this Agreement;
C. a failure to elect, re-elect or appoint Ex-
ecutive to the office of ______________________
(other than as a result of Executive's disability or
his termination of employment pursuant to Section
7(c));
D. any other material breach of this Agreement by the Company
(other than a breach of Section 3(c)); or
E. prior to December 31, 2000, Executive being required to
relocate from Fairfield County, - Connecticut, without Executive's
written consent.
(Upon the occurrence of any event described in clauses A., B., C., D. or E.
above, Executive shall have the right to elect to terminate his employment under
this Agreement by resignation, upon not less than thirty (30) days' prior
written notice given within a reasonable period of time not to exceed three
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(3) calendar months after the event giving rise to said right to elect); or
(iii) Executive's resignation from the Company's employ during the
30-day period commencing upon the first anniversary of a Change in Control
of the Company, if such Change in Control occurs subsequent to a Public
Offering (or during the 30-day period commencing upon the sixth month
anniversary of a Change in Control of the Company, if such Change in
Control occurs prior to a Public Offering). For purposes of this
Agreement, a Change in Control of the Company means the occurrence of one
of the following events:
A. any "person" or "group" (within the meaning of Sections
13(d) and 14(d)(2) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act")) becomes, after the Effective Date, the
"beneficial owner" (as defined in Rule 13d-3 under the Exchange
Act), directly or indirectly, of securities of the Company
representing more than 50% of the Company's then outstanding
securities eligible to vote for the election of the Company's Board
of Directors (the "Company Voting Securities"); provided, that an
event described in this paragraph A. shall not be a Change in
Control if any of the following becomes such a beneficial owner: (1)
the Company or any majority-owned subsidiary of the Company (a
"Subsidiary"), (2) any employee benefit plan (or related trust)
sponsored or maintained by the Company or any Subsidiary, (3) any
underwriter temporarily holding securities pursuant to an offering
of such securities, (4) any person pursuant to a Non-Qualifying
Transaction (as defined in paragraph B.), (5) Executive or any group
of persons including Executive (or any entity controlled by
Executive or any group of persons including Executive), or (6)
Xxxxxx Xxxxxxx & Co. or Swiss Bank Corporation or any entity
controlled by, controlling or under common control with either of
such entities; or
B. the consummation of a merger, consolidation or
reorganization of the Company (a "Business Combination"), unless,
following such Business Combina-
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tion, the owners of the Company Voting Securities immediately prior
to such Business Combination (or their affiliates) beneficially own,
directly or indirectly, 50% or more of the combined voting power of
the then outstanding voting securities entitled to vote generally in
the election of the directors of the corporation resulting from such
Business Combination (a "Non-Qualifying Transaction").
The initial public offering of common stock of the Company pursuant to a
registration statement filed under the Securities Act of 1933, as amended (a
"Public Offering"), shall not be treated as a Change in Control for purposes of
this Agreement.
The expiration of the term of this Agreement as a result of the failure to renew
this Agreement shall not be treated as an event of termination under this
Section 7(a).
(b) Severance Upon an Event of Termination. Upon the occurrence of
an event of termination under Section 7(a), the Company shall, subject to the
provisions of Section 9 below, monthly for the duration of the Severance Period
(as defined below) pay Executive or, in the event of Executive's subsequent
death, his beneficiary or beneficiaries or his estate, as the case may be, as
severance pay and liquidated damages the monthly Base Salary paid to Executive
at the time of termination of his employment (the "Severance Payments"). In
addition, following an event of termination under Section 7(a), the Company
shall continue to provide the health and welfare insurance benefits provided to
Executive under Section 5 hereof as of immediately prior to his date of
termination for a period of twelve (12) months following the date of termination
(provided that Executive continues to make all required employee contributions)
and shall compensate Executive for Executive's loss of pension benefits by
providing Executive with a lump sum payment equal to the difference, computed on
the basis of actuarial present values as of Executive's date of termination
(using actuarial assumptions in effect for the Company's defined benefit plan as
of the date of termination) between (1) the aggregate benefits Executive would
have been entitled to receive under the Company's qualified and nonqualified
defined benefit pension plans (the "Retirement Plans"), had Executive's
employment continued under this Agreement for the Severance Period and (2) the
aggregate benefit Executive is actually entitled to receive under the Retirement
Plans as of the date of termination. For purposes of this Agreement, the
"Severance Period"
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shall commence on the date of termination of Executive's employment with the
Company and expire upon the earlier of (i) twenty-four (24) months from the date
of termination and (ii) nine (9) months following the date on which the term of
this Agreement (as in effect as of Executive's date of termination) would have
otherwise expired; provided, that in no event shall the Severance Period be
longer than eighteen (18) months in the event of a termination of employment
pursuant to Section 7(a)(ii) E. hereof. The Severance Payments shall commence on
the last day of the month in which the event of termination occurs; provided,
that the first such payment shall be reduced by the amount of any Base Salary
received by Executive for the portion of such month prior to the event of
termination. Notwithstanding the foregoing, the Company's obligation to provide
severance benefits hereunder shall be reduced by the value of any cash
compensation paid to (or deferred by) Executive with respect to employment or
consulting services performed by Executive during the Severance Period. In the
event Executive receives twelve (12) months of continued welfare benefit
insurance as described above, and the Company's level of self-insurance for
medical benefits (with respect to individual claims in any given year) as of
Executive's date of termination is not more than 10% greater than it is as of
the Effective Date, Executive's coverage period for "COBRA" continuation health
coverage (to the extent Executive is otherwise eligible for coverage) shall
begin upon the expiration of such 12-month period.
(c) Other Termination of Employment. Notwithstanding Sections 7(a)
and (b) or any other provision of this Agreement to the contrary, if on or after
the date of this Agreement and prior to the end of the term hereof:
(i) Executive has been convicted of, or plead guilty or nolo
contendere to, any crime or offense constituting a felony under applicable
law, including, without limitation, any act of dishonesty such as
embezzlement, theft or larceny;
(ii) Executive's commission of a material act of fraud or dishonesty
against the Company or any of its subsidiaries or Executive's willful
engaging in conduct which is significantly injurious to the Company or any
of its subsidiaries, monetarily or otherwise;
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(iii) Executive's abuse of illegal drugs and other controlled
substances or Executive's habitual intoxication, which conduct continues
after written demand for cessation of such conduct is delivered to
Executive by the Board; or
(iv) any willful or continuous neglect of or refusal to perform
Executive's duties or responsibilities or the willful taking of actions
which directly and materially impair Executive's ability to perform his
duties and responsibilities hereunder which continues after detailed
written notice thereof has been given to Executive;
then, and in each such case, the Company shall have the right to give notice of
termination of Executive's services hereunder as of a date (not earlier than 10
days from such notice) to be specified in such notice and this Agreement (other
than the provisions of Sections 8 and 9 hereof) shall terminate on such date.
8. Duties Upon Termination. Executive agrees that he will, upon
termination of his employment with the Company for any reason whatsoever,
deliver to the Company any and all records, forms, contracts, memoranda, work
papers, lists of names or other customer data and any other articles or papers
which have come into his possession by reason of his employment with the Company
or which he holds for the Company, irrespective of whether or not any of said
items were prepared by him, and he shall not retain memoranda or copies of any
of said items. Executive shall assign to the Company all rights to trade secrets
and the products relating to the Company's business developed by him alone or in
conjunction with others at any time alike employed by the Company.
9. Post-Termination Obligations. All payments and benefits to
Executive under this Agreement shall be subject to Executive's compliance with
the following provisions during the Compliance Period, as defined below.
(a) Confidential Information. Executive shall not disclose or reveal
to any unauthorized person any trade secret or other confidential
information relating to the Company, its subsidiaries or its affiliates,
or to any businesses operated by them, including, without limitation, any
customer lists; and Executive confirms that such information constitutes
the exclusive property of the Company. For purposes of this Section 9(a),
the
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"Compliance Period" shall commence on the Effective Date
and continue thereafter.
(b) Competitive Conduct. Executive shall not otherwise act or
conduct himself to the material detriment of the Company, its subsidiaries
or affiliates, or in a manner which is inimical or contrary to the
interests thereof, and shall not engage, directly or indirectly, alone, in
association with or as a shareholder, principal, agent, partner, member,
officer, director, employee or consultant of any person, firm or entity,
in any business within the United States or Canada in competition with any
part of the business being conducted by the Company or its subsidiaries;
provided, however, that Executive's ownership of less than 2 percent of
the outstanding stock of a publicly traded corporation (other than a
corporation engaged primarily in the business of developing or operating
hydroelectric projects) shall not by itself be deemed to constitute such
competition. Executive shall not (i) divert to any entity which is engaged
in any business conducted by the Company or any of its subsidiaries, any
customer of such entities or any project which such entities are pursuing,
developing or attempting to develop as of Executive's date of termination
or (ii) solicit any officer, employee (other than secretarial staff) or
consultant of the Company or any of its subsidiaries to leave the employ
of such entities. Executive recognizes that the possible restrictions on
his activities which may occur as a result of his performance of his
obligations under this Section 9(b) are required for the reasonable
protection of the Company and its investments.
(c) Compliance Period. For purposes of Section 9(b) of this
Agreement, the "Compliance Period" shall commence on the Effective Date.
If an event of termination under Section 7(a) hereof occurs prior to the
expiration of the term of this Agreement, the Compliance Period shall end
on the later of (A) the expiration of six months from the date of
termination of Executive's employment, and (B) the end of the period for
which Executive is entitled to receive Severance Payments. If Executive's
employment by the Company terminates in accordance with Section 7(c)
hereof or if Executive voluntarily terminates employment (other than
pursuant to Xxx-
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xxxx 0(x)(xx)) prior to the expiration of the term of this Agreement, the
Compliance Period shall end on the later of the expiration of the term of
this Agreement and the second anniversary of the termination of
Executive's employment. In all cases other than those described in the two
preceding sentences, the Compliance Period shall end on the expiration of
the term of this Agreement.
(d) Failure of Executive to Comply. If for any reason other than
death or disability, Executive shall, without written consent of the
Company, fail to comply with the provisions of Section 9(a) or 9(b) above,
his rights to any future payments or other benefits hereunder shall
terminate, and the Company's obligations to make such payments and provide
such benefits shall cease; provided, however, that no failure to comply
with any provision of Section 9(a) or 9(b) above shall be deemed to have
occurred unless and until Executive receives written notice from the
Company specifying the conduct alleged to constitute such failure.
(e) Remedies. Executive agrees that monetary damages would not be
adequate compensation for any loss incurred by the Company by reason of a
breach of the provisions of Sections 8 and 9 of this Agreement and hereby
agrees to waive the defense in any action for specific performance that a
remedy at law would be adequate. Accordingly, in addition to any other
remedies that the Company may have at law or in equity, Company shall have
the right to have all obligations, agreements and other provisions of
Sections 8 and 9 specifically performed by Executive, and the Company
shall have the right to obtain preliminary injunctive relief to secure
specific performance and to prevent a breach of Section 8 or 9.
10. Effect of Prior Agreements. This Agreement contains the entire
understanding between the parties hereto and, upon effectiveness of this
Agreement pursuant to Section 3(a) hereof, supersedes all prior employment
agreements between the Company and Executive (including without limitation the
Prior Agreement), except that this Agreement shall not affect or operate to
reduce any benefit or compensation inuring to Executive of a kind elsewhere
provided and not expressly provided in this Agreement (other than benefits set
forth in the Prior Agreement or in Executive's guaranteed minimum bonus
arrangement which Executive acknowledges has been terminated).
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11. General Provisions.
(a) Binding Agreement. This Agreement shall be binding upon, and
inure to the benefit of Executive and the Company and their respective permitted
successors and assigns.
(b) Legal Expenses. In the event that Executive incurs legal
expenses in contesting any provision of this Agreement and such contest results
in a determination that the Company has breached any of its obligations
hereunder, Executive shall be reimbursed by the Company for any such legal
expenses reasonably incurred.
(c) Mitigation. Executive shall not be obligated to seek other
employment or take any other action to mitigate any severance benefits
hereunder.
12. Successors and Assigns.
(a) Assignment by the Company. This Agreement shall be binding upon
and inure to the benefit of the successors and assigns of the Company and,
unless clearly inapplicable, reference herein to the Company shall be deemed to
include its successors and assigns.
(b) Assignment by Executive. Executive may not assign this Agreement
in whole or in part.
13. Modification and Waiver.
(a) Amendment of Agreement. Except for increases in compensation
made as provided in Section 4(a), this Agreement may not be changed or modified
except by an instrument in writing signed by both of the parties hereto.
(b) Waiver. No term or condition of this Agreement shall be deemed
to have been waived, nor shall there be any estoppel against the enforcement of
any provision of this Agreement, except by written instrument of the party
charged with such waiver or estoppel. No such written waiver shall be deemed a
continuing waiver unless specifically stated therein, and each such waiver shall
operate only as to the specific term or condition waived and shall not
constitute a waiver of such term or condition for the future or as to any act
other than that specifically waived.
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14. Beneficiaries. This Agreement shall be for the express benefit
of the Company, Executive and, for so long as Xxxxxx Xxxxxxx & Co. or Swiss Bank
Corporation or their successors shall be a holder of at least 3% of the equity
of the Company, Xxxxxx Xxxxxxx & Co. or Swiss Bank Corporation
(or their successors), as the case may be.
15. Severability. In the event any provision of this Agreement or
any part hereof is held invalid, such invalidity shall not affect any remaining
part of such provision or any other provision, and to this end, the provisions
of this Agreement are intended to be and shall be deemed severable. If any court
construes any provision of this Agreement to be illegal, void or unenforceable
because of the duration or the area or matter covered thereby, such court shall
reduce the duration, area or matter of such provision, and, in its reduced form,
such provision shall then be enforceable and shall be enforced.
16. Withholding. Employer may withhold from any amounts payable
under this Agreement such taxes and governmen- tally required withholdings as
may be required to be withheld pursuant to any applicable law or regulation.
17. Notices. Any notice to be given hereunder shall be in writing
and shall be deemed given when delivered personally, sent by courier or telecopy
or registered or certified mail, postage prepaid, return receipt requested,
addressed to the party concerned at the address indicated below or to such other
address as such party may subsequently give notice of hereunder in writing:
To Executive at:
-------------------------
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To the Company at:
000 Xxxxxxxxxx Xxxxxxxxx
Xxxxxxxx, XX 00000
Attention: Controller
18. Governing Law. The parties hereto intend that this Agreement
shall be governed by the laws of the State of Connecticut.
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IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed by its duly authorized officer, and Executive has signed this
Agreement, all as of the day and year first above written.
CONSOLIDATED HYDRO, INC.
By:
Title:
[Executive]
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