Exhibit 10.41.5
CONSULTING AGREEMENT
This Consulting Agreement is entered into as of the 21st day of December, 2002,
between Northeast Utilities Service Company ("the Company") and Xxxxx X. Xxxxxx
("Consultant").
1. Independent Contractor. Subject to the terms and conditions of this
Consulting Agreement, the Company hereby engages Consultant as an independent
contractor, within the scope and meaning of the Internal Revenue Code and
Connecticut common law, to perform the services set forth herein, and the
Consultant hereby accepts such engagement under these terms. This Consulting
Agreement shall not render Consultant an employee, partner, agent of, or
joint venturer with the Company for any purpose. Consultant is and will
remain an independent contractor in his relationship to the Company.
2. Scope of Consulting Services. Pursuant to this Agreement, Consultant will
serve as the Northeast Utilities ("NU") system's lead in managing NU's
residual nuclear responsibilities, including, but not limited to, serving as
Chairman of the Connecticut Yankee Atomic Power Company ("CY") and Yankee
Atomic Electric Company ("YA") Boards of Directors and their Executive
Committees, serving as a member of the Maine Yankee Atomic Power Company
("MY") Board of Directors and its Executive Committee, and serving as a
member of the Vermont Yankee Nuclear Power Corporation ("VY") Board of
Directors. Consultant will take direction from and provide a monthly written
report suitable for review by NU's Board of Trustees, as well as providing
verbal updates regarding significant matters to CEO and President - Utility
Group, as appropriate. Finally, Consultant will be responsible for providing
such services related to the NU system's nuclear responsibilities as may
be requested from time to time by the NU CEO.
3. Term of Consulting Agreement. The Consultant agrees to provide the
aforementioned services to the Company for a period of twenty-four months,
beginning January 1, 2003, and ending December 31, 2004. The Company may
extend this agreement for up to one additional year, with mutual agreement
of Consultant, under the same terms and conditions set forth herein, by
giving notice to Consultant at least 60 days in advance of December 31, 2004.
4. Consulting Fees. Consultant shall receive for his services $20,000 per
month. If Consultant provides services for more than eight days per month in
aggregate for a twelve month period (or shorter period if renewal is for
fewer than twelve months), then Consultant shall receive for his services
total payments excluding expenses at a rate of $2,500.00 per day or portion
of a day. The Company will pay monthly $20,000 Consultant's fees within
fifteen days after the end of each month and will pay for days exceeding
ninety-six days per year within fifteen days of the receipt of the
corresponding invoices from Consultant. The Company shall not be responsible
for withholding taxes with respect to Consultant's fees hereunder and shall
issue to the Consultant an IRS Form 1099 for any fees paid to Consultant
hereunder. Consultant acknowledges and agrees that he shall remain fully
responsible for the payment of any and all taxes arising out of the payment
terms of this Consulting Agreement. Consultant shall have no claim against
the Company hereunder for vacation pay, sick leave pay, retirement benefits,
social security, worker's compensation, health or disability benefits,
unemployment insurance benefits, or employee benefits of any kind.
5. Expenses. Within one month of the effective date of this Agreement,
the Company shall pay to Consultant the sum of Twenty-Five Thousand Dollars
($25,000.00), which sum is intended to compensate Consultant for all expenses
incurred in performance of his duties under this Agreement for the first year
of its term, with the exception of travel costs to or from a location outside
the New England region. A similar payment will be made in the first month of
the second year of the term of this Agreement. For costs associated with
travel outside the New England region, Consultant shall xxxx the Company for,
and the Company shall reimburse him for, all reasonable and approved
out-of-pocket expenses that are incurred in connection with such travel
necessitated by the performance of Consultant's duties hereunder.
6. Use of Company Equipment. The Company will provide to Consultant,
throughout the term of this Agreement, the use of a computer, telephone,
facsimile machine, and copy machine, as well as other equipment that is
reasonably necessary for Consultant to perform his duties under this
Agreement. All such equipment will remain the property of the Company.
7. Confidentiality/Nondisclosure of Information: Consultant agrees that,
during the term of this Agreement and at all times thereafter, the Consultant
will not, either directly or indirectly, divulge, disclose or communicate to
any person, firm, business, utility, association, partnership or corporation,
any confidential or proprietary information or studies prepared by, for, or
on behalf of the NU system, including, without limiting the generality of the
foregoing, the names of any of the NU system's actual or prospective
suppliers and/or customers, or the prices at which any company in the NU
system sells or purchases, has sold or purchased, or potentially may sell or
purchase power or fuel, marketing or financial studies, marketing or
financial strategies, energy delivery or energy management studies, or any
other information of, about, or concerning the business, business plans, or
strategies of NU system companies that have been identified as confidential
or proprietary and are not in the public forum, except with NU's prior,
written consent. Consultant further agrees not to use any such information
other than for the direct benefit of NU.
8. Conflicts of Interest. During the term of this Consulting Agreement, the
Consultant shall devote as much of his productive time, energy and abilities
to the performance of his duties hereunder as is necessary to perform the
required duties in a timely and productive manner. The Consultant is
expressly free to perform services for other parties while performing services
for the Company.
9. Indemnification. The Company shall indemnify, defend, and hold Consultant
harmless from and against any and all costs (including but not limited to
reasonable litigation expenses and attorney's fees), settlements, judgments,
liabilities, fines, penalties or damages whatsoever arising out of claims
of third parties for which Consultant may become liable by reason of the
performance of duties required by this Consulting Agreement, except,
however, that such indemnification, duty to defend, and hold harmless
obligations shall not extend or pertain to instances of gross negligence or
intentional or willful misconduct. Except as covered in the preceding
sentence, Consultant agrees to indemnify and forever hold the Company, its
parent, and all other member companies of the Northeast Utilities holding
company system and their respective trustees, officers, directors and
employees, harmless for any damage and/or personal injury to Consultant
resulting from or in any way connected with Consultant's work for the
Company under this agreement.
10. Equitable Relief. The parties hereto acknowledge that the services to be
rendered by Consultant under this Consulting Agreement and the rights and
privileges granted to the Company under the Agreement are of a special,
unique, unusual, and extraordinary character which gives them a peculiar
value, the loss of which cannot be reasonably or adequately compensated by
damages in any action at law, and the breach by Consultant of any of the
provisions of this Agreement will cause the Company irreparable injury and
damage.
11. Termination. The Company may terminate this Agreement and the engagement
of Consultant hereunder upon written notice to Consultant at any time and for
any reason. In the event of such termination other than for "cause" as set
forth below, the Company will pay Consultant the remaining amounts due under
this Consulting Agreement for the remainder of its term. If Consultant is
convicted of any crime or offense, fails or refuses to comply with the
written policies or reasonable directive of the Company, is guilty of serious
misconduct in connection with performance hereunder, or materially breaches
any provision of this Consulting Agreement, the Company may terminate this
Consulting Agreement for cause and, after compensating Consultant for his
services rendered through the termination date, will have no further
obligations to Consultant under this Consulting Agreement. Consultant may
terminate this agreement if, for reasons beyond Consultant's control,
Consultant is unable to fulfill the obligations of this Agreement. In the
event that Consultant terminates this Agreement, the Company, after
compensating Consultant for his services rendered through the termination
date, will have no further obligations to Consultant under this Consulting
Agreement.
12. Successors and Assigns. All of the provisions of this Consulting
Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective heirs, if any, successors, and assigns.
13. Choice of Law. The laws of the state of Connecticut shall govern the
validity of this Consulting Agreement, the construction of its terms and the
interpretation of the rights and duties of the parties hereto.
14. Arbitration. Any controversies arising out of the terms of this Consulting
Agreement or its interpretation shall be submitted to binding arbitration
pursuant to the rules and procedures of the American Arbitration Association
in the State of Connecticut. The decision of the arbitrator shall be final
and binding, and the arbitrator shall be authorized to award the prevailing
party that party's reasonable attorneys' fees and costs, including that
party's share of the arbitrator's fees, incurred in connection with the
arbitration.
15. Waiver. Waiver by one party hereto of breach of any provision of this
Consulting Agreement by the other shall not operate or be construed as a
waiver of any other provision of this Consulting Agreement.
16. Assignment. Consultant shall not assign any of his rights under this
Agreement, or delegate the performance of any of his duties hereunder,
without the prior written consent of the Company.
17. Notices. Any and all notices, demands, or other communications required
or desired to be given hereunder by any party shall be in writing and shall
be validly given or made: (1) by the Company, if mailed certified mail,
return receipt requested, to: Xxxxx X. Xxxxxx, 00 Xxxxxxxxx Xxxxx Xxxx,
Xxx Xxxx, XX 00000; and (2) by Consultant, if mailed certified mail,
return receipt requested, to Northeast Utilities Service Company,
X.X. Xxx 000, Xxxxxxxx, XX 00000.
18. Complete Agreement/Modification or Amendment. This is the complete
agreement between the parties. No amendment, change or modification of
this Agreement shall be valid unless in writing signed by the parties hereto.
19. Unenforceability of Provisions. If any provision of this Consulting
Agreement, or any portion thereof, is held to be invalid and unenforceable,
then the remainder of this Consulting Agreement shall nevertheless remain in
full force and effect.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
day and year first written above.
NORTHEAST UTILITIES XXXXX X. XXXXXX
SERVICE COMPANY
By: /s/ Xxxxxxx X. Xxxxxx /s/ Xxxxx X. Xxxxxx
Its: Chairman, President
and CEO
