Exhibit (10)(o)
EMPLOYMENT AGREEMENT
AGREEMENT between Consumers Power Company, a Michigan corporation
(the "Company"), and Xxxxx X. Xxxx (the "Executive") dated this 19th day
of March, 1996.
Whereas the Company considers the maintenance of a vital management
essential to protecting and enhancing the best interests of the Company
and its shareholders. Whereas the Company has determined to encourage the
continuing attention and dedication of the key members of its management
without the distraction arising from the possibility of a change in
control.
Therefore, the parties hereto agree as follows:
1. Operation of Agreement. The "Effective Date" shall be the date
on which a Change of Control (as defined in Section 2) shall occur.
2. Change of Control. As used in this Agreement, "Change of
Control" shall be deemed to have taken place if a person, including a
"group" as defined in Section 13(d)(3) of the Securities Exchange Act of
1934 becomes the beneficial owner of shares having 35% or more of the
total number of votes that may be cast in the election of Directors of
CMS Energy Corporation.
3. Employment. The Company hereby agrees to continue to employ and
engage the services of the Executive as its Executive Vice President and
Chief Operating Officer-Electric of the Company for the period beginning
on the Effective Date and ending on the earlier of the fifth anniversary
of such date or the Normal Retirement Date of the Executive under the
Company's Pension Plan (hereinafter "Employment Period"). The Executive
agrees to serve the Company in such position, unless an event shall occur
which is described in Section 6.
4. Duties. The Executive agrees during the Employment Period to
devote his full business time to the business and affairs of the Company
(except for (i) services on corporate, civic or charitable boards or
committees, (ii) such reasonable time as shall be required for the
investment of the Executive's assets, which do not significantly interfere
with the performance of his responsibilities hereunder and (iii) periods
of vacation and sick leave to which he is entitled) and to use his best
efforts to promote the interests of the Company and to perform faithfully
and efficiently the responsibilities of Executive Vice President and Chief
Operating Officer-Electric.
5. Compensation and Other Terms of Employment.
(a) Base Salary. The Executive shall receive an annual base
salary ("Base Salary") of not less than his annual salary immediately
prior to the Effective Date (payable in equal semi-monthly installments)
from the Company.
The Base Salary shall be reviewed and may be increased at any time
and from time to time in accordance with the Company's regular practices,
and shall be reviewed at least annually by the Organization and
Compensation Committee of its Board of Directors.
(b) Incentive Compensation. As further compensation, the
Executive will be eligible for awards ("Incentive Compensation") under the
Company's Executive Incentive Compensation Plan in which he was
participating immediately prior to the Effective Date.
(c) Retirement, Savings and Stock Option Plans. In addition to
the Base Salary and Incentive Compensation payable as hereinabove
provided, the Executive shall be entitled to participate in savings, stock
options and other incentive plans and programs available to executives of
the Company or to opportunities provided under any such plans in which he
was participating immediately preceding the Effective Date, whichever is
greater.
(d) Vacation and Employee Benefits.
(i) The Executive shall be entitled to paid vacation and
other employee benefits and perquisites, in accordance with the policies
of the Company in effect for executive officers, or the vacation employee
benefits and perquisites to which he was entitled immediately prior to the
Effective Date, whichever is greater.
6. Termination.
(a) Death. This Agreement shall terminate automatically upon
the Executive's death. In the event of such termination, the Company
shall pay to the Executive's estate all benefits and compensation accrued
hereunder to the date of death, including a pro rata portion of incentive
compensation.
(b) Disability. In the event the Executive becomes unable by
reason of physical or mental disability to render the services required
hereunder and such disability continues for a continuous period of 6
months, the employment of the Executive hereunder shall terminate, unless
the employment is extended by agreement of the Company and the Executive.
Commencing at the date of termination of employment for disability, the
Executive shall receive annually a sum equal to 50% of his Base Salary at
the time of termination of employment, in monthly installments until his
62nd birthday, or his death if earlier. Disability payments hereunder
shall be reduced by the amount of other Company-sponsored disability
benefits paid to the Executive through insurance or otherwise.
(c) Termination with Cause. The Company may terminate the
Executive's employment for Cause. For purposes of this Agreement, "Cause"
shall mean an act or acts of dishonesty, fraud, misappropriation or
intentional material damage to the property or business of the Company or
commission of a felony on the Executive's part. If the Executive's
employment is terminated for Cause, the Company shall pay the Executive
his full accrued Base Salary through the date of such termination at the
rate in effect at the time of such termination, and the Company shall have
no further obligations to the Executive under this Agreement.
(d) Other Termination or Resignation of Executive.
(i) The Company may terminate the Executive's employment
without Cause.
(ii) In the event that the Executive determines in his
sole judgment that his position, authority, or responsibilities have been
diminished as a result of the "Change of Control," the Executive may
terminate his employment with the Company upon written notice given within
12 months after the Effective Date.
(iii) In the event of a termination of employment under
this subsection (d), the Executive shall receive a severance payment equal
to twice his Base Salary at the time of termination of employment plus
either twice his incentive compensation payable with respect to the last
full calendar year prior to the termination of employment or, if no
incentive compensation was awarded to the Executive with respect to the
last full calendar year prior to the termination of employment, twice the
standard incentive award, as defined in the Company's Executive Incentive
Compensation Plan for the salary grade of the Executive for such year.
The severance payment shall be paid in a lump sum payment, in cash, or as
otherwise directed by the Executive.
7. No Obligation to Mitigate Damages. The Executive shall not be
obligated to seek other employment in mitigation of amounts payable or
arrangements made under the provisions of this Agreement and the obtaining
of any such other employment shall in no event effect any reduction of the
Company's obligations to make the payments and arrangements required to be
made under this Agreement.
8. Indemnification. The Company shall include the Executive in its
Director and Officer Liability Insurance policy, if any, during his
Employment Period and for a period of not less than five years after the
termination of the Executive's employment for any reason whatsoever. In
addition to insurance and any other indemnification available to the
Executive as an Officer, the Company shall indemnify, to the extent
permitted by applicable law, the Executive for settlements, judgments and
reasonable expenses in connection with activities arising from services
rendered by the Executive as a Director or Officer of the Company or any
affiliated company.
9. Notices. Any notices, requests, demands and other communications
provided for by this Agreement shall be sufficient if in writing and if
sent by registered or certified mail to the Executive at the last address
he has filed in writing with the Company or, in the case of the Company,
Attn: Secretary, at its principal executive offices.
10. Non-Alienation. The Executive shall not have any right to
pledge, hypothecate, anticipate or in any way create a lien or security
interest upon any amounts provided under this Agreement; and no benefits
payable hereunder shall be assignable in anticipation of payment either by
voluntary or involuntary acts, or by operation of law, except by will or
the laws of descent and distribution.
11. Governing Law. The provisions of this Agreement shall be
construed in accordance with the laws of the State of Michigan.
12. Amendment. This Agreement may be amended or cancelled only by
mutual agreement of the parties in writing without the consent of any
other person and, so long as the Executive lives, no person, other than
the parties hereto, shall have any rights under or interest in this
Agreement or the subject matter hereof.
13. Successor to the Company. Except as may be otherwise provided
herein, this Agreement shall be binding upon and inure to the benefit of
the Company and any successor of the Company.
14. Severability. The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or
enforceability of any other provision of this Agreement.
IN WITNESS WHEREOF, the Company and the Executive have executed this
Agreement as of the date first above written.
/s/ Xxxxx X. Xxxx
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Xxxxx X. Xxxx
CONSUMERS POWER COMPANY
By: /s/ Xxxxxxx X. XxXxxxxxx, Xx.
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Xxxxxxx X. XxXxxxxxx, Xx.
Chairman of the Board
