Exhibit 10(as)
Maine Public Service
Company
EMPLOYEE RETENTION
AGREEMENT
THIS EMPLOYEE RETENTION AGREEMENT
dated as September 5, 2003 (this “Agreement”) is
entered into between Maine Public Service Company, a Maine
corporation (the “Company”), and Brent M. Boyles (the
“Executive”) (the Company and Executive are sometimes
referred to as “Party” or collectively
“Parties”).
RECITALS
WHEREAS, the Executive, has been
employed by the Company in a management capacity and is now its
Senior Vice President, Operations; and
WHEREAS, the Board of Directors of
the Company has determined this Agreement to be in the best
interests of the stockholders of the Company, in order to encourage
the attention and dedication of the Executive to his assigned
duties with the Company without distraction in connection with
potentially disruptive circumstances arising from the possibility
of a Change in Control (as defined herein) or certain other events
specified in this Agreement;
Now, THEREFORE, in consideration of
the mutual promises and covenants contained herein and for other
good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged by the Parties, the Company and the
Executive agree as follows:
Section 1.
Certain
Definitions
As used herein, the following terms
have the indicated meanings:
(1)
“Cause” for termination by the Company of the
Executive’s employment shall mean (i) the willful and
continued failure by the Executive to substantially perform his
duties with the Company after a written notice is delivered to the
Executive by the Company, which notice specifically identifies the
manner in which the Company believes that the Executive has not
substantially performed the Executive’s duties; or (ii) the
willful engaging by the Executive in gross misconduct that is
injurious to the Company, monetarily or otherwise (including,
without limitation, the Executive’s conviction, by a court of
competent jurisdiction, of a crime adversely reflecting on the
Executive’s honesty, trustworthiness or fitness to carry out
the responsibilities of his position with the Company). An act, or
failure to act, on the Executive’s part shall be deemed
“willful” where such act is done, or not done, by the
Executive: (i) in the absence of good faith; or (ii) without a
reasonable belief that the Executive’s act, or failure to
act, was in the best interest of the Company.
(2)
A “Change in
Control” shall be deemed to have occurred if the
conditions set forth in any one of the following paragraphs shall
have been satisfied:
(a)
any “person” (as such term is used in Sections 13(d)
and 14(d) of the Securities Exchange Act of 1934, as amended)
(other than the Company, any trustee or other fiduciary holding
securities under any employee benefit plan of the Company, or any
corporation owned directly or indirectly by the stockholders of the
Company in substantially the same proportion as their ownership of
stock of the Company) is or becomes the “beneficial
owner” (as defined in Rule 13d-3 under the Securities
Exchange Act of 1934, as amended), directly or indirectly, of
securities of the
Company representing fifty percent
or more of the combined voting power of the Company’s then
outstanding voting securities;
(b)
a change in the composition of the Board of Directors of the
Company, as a result of which fewer than a majority of the
directors are persons who either (A) are directors of the Company
as of the date hereof or (B) were elected after nomination by a
majority of the directors of the Company on the date hereof and
directors so elected previously;
(c)
any merger or consolidation of the
Company, approved by the stockholders of the Company, with any
other corporation; other than:
(A)
any such merger or consolidation that would result in the voting
securities of the Company outstanding immediately prior to the
merger or consolidation, continuing to represent (either by
remaining outstanding or by being converted into voting securities
of the surviving or parent entity) more than fifty percent of the
combined voting power of the voting securities (entitled to vote
generally for the election of directors) of the Company or such
surviving or parent entity outstanding immediately after such
merger or consolidation, or subsequently at any time as
contemplated by or as a result of, such merger or consolidation;
or
(B)
any such merger or consolidation where such merger or consolidation
is effected to implement a recapitalization or reincorporation of
the Company (or similar transaction) in which no
“person” (as such term is used in Sections 13(d) and
14(d) of the Securities Exchange Act of 1934, as amended) acquires
fifty percent or more of the combined voting power of the
Company’s then-outstanding voting securities;
(d)
any merger or consolidation of the Company in which the Company is
not the continuing or surviving corporation or pursuant to which
shares of the Company’s stock, would be converted into cash,
securities or other property; other than a merger or
consolidation of the Company in which the stockholders of the
Company immediately prior to the merger or consolidation have
substantially the same proportionate ownership and voting control
of the surviving corporation or parent entity immediately after the
merger or consolidation;
(e)
except as described below, the Company ceases to be a reporting
company pursuant to Section 13 (a) of the Securities Exchange
Act of 1934 as amended, or any similar successor
provision;
(f)
the number of the Company’s Outside Directors, as defined
below, is decreased by more than fifty percent in any twenty-five
month period or the number of the Company’s directors
increased in such a manner that the Outside Directors constitute
less than a majority of the Board;
(g)
the stockholders of the Company approve a plan of complete
liquidation of the Company or an agreement for the sale, lease,
exchange, liquidation, disposition or other transfer (in one
transaction or a series of transactions) by the Company of all or
substantially all of the Company’s assets (or any transaction
having a similar effect).
(h)
further, a “Change in
Control” shall not be deemed to occur if the
conditions set forth in the following sub-paragraph shall have been
satisfied:
(A)
a merger, consolidation or
reorganization of the Company if, upon consummation of such
transaction all of the outstanding voting stock of the Company is
owned,
directly or indirectly, by a holding
company, and the holders of the Company’s common stock
immediately prior to the transaction have substantially the same
proportionate ownership and voting control of the holding
company.
(3)
“Good Reason” for termination by the Executive of
the Executive’s employment shall mean the occurrence of any
one of the following acts unless such act is corrected prior to the
Termination Date specified in the Termination Notice given in
respect thereof or, in the case of paragraph (d) below, such act is
not objected to in writing by the Executive within four months
after notification by the Company to the Executive of the
Company’s intention to take the action contemplated by such
paragraph (d):
(a)
the assignment of duties to the
Executive which:
(i)
are materially different from his
duties immediately prior to the Change in Control, or
(ii)
result in his having significantly
less authority or responsibility than he had prior to the Change in
Control;
(b)
the Executive’s removal from,
or any failure to re-elect him to, any position he held immediately
prior to the Change in Control;
(c)
a reduction of the Executive’s
annual base salary in effect on the date of the Change in Control
or as the same may be increased from time to time
thereafter;
(d)
the Company’s transferring or
assigning the Executive to a place of employment more than one
hundred miles from Presque Isle, Maine, except where: (1) such
transfer or assignment is to a subsidiary or affiliate entity
location, consistent with the Executive’s duties; and (2) in
connection with required business travel to an extent substantially
consistent with the Executive’s business travel obligations
immediately prior to the Change in Control;
(e)
the Company’s failure to
provide the Executive with substantially the same health, life and
other empl
