Exhibit 10.d.45
PERSONAL AND
CONFIDENTIAL
Vice President
- Public Affairs
Green Mountain
Power Corporation
Green Mountain Power Corporation (the
“Company”) considers it essential to the best interests
of its shareholders to foster the continuous employment of key
management personnel. In addition, the Board of Directors of the
Company (the “Board”) recognizes that the possibility
of a change of control of the Company may exist and the uncertainty
and questions which it may raise among management may result in the
distraction or departure of management personnel to the detriment
of the Company and its shareholders.
The Board has determined that appropriate steps
should be taken to reinforce and encourage the continued attention
and dedication of members of the Company’s management,
including yourself, to their assigned duties without distraction in
the face of the possibility of a change in control of the Company,
although no such change is known to be contemplated.
In order to induce you to remain in the employ
of the Company and in consideration of your agreements set forth in
subsections 4(ii), 6(ix), 6(x) and 6(xi) hereof, the Company agrees
that you shall receive the severance benefits set forth in this
Agreement in the event your employment with the Company is
terminated subsequent to a “change in control of the
Company” (as defined in section 4 hereof and hereinafter a
“Change of Control”) under the circumstances described
below.
1.
Term of Agreement
. This Agreement shall commence on
December 19, 2005 (the “Effective Date”) and shall
continue in effect through December 31, 2005; provided, however,
that commencing on January 1, 2006 and each January 1 thereafter,
the term of this Agreement shall automatically be extended for one
additional year unless, not later than September 30 of the
preceding year, the Company shall have given notice that it does
not wish to extend this Agreement.
2.
Terms of Employment Before a
Change of Control . Prior
to a Change of Control, your terms of employment (“Terms of
Employment”) shall be as follows:
(a)
General duties. Excluding periods
of vacation and sick leave to which you are entitled, you will
continue to exercise such authority and perform such executive
duties as are commensurate with the authority being exercised and
duties being performed by you immediately before the Effective
Date.
(b)
Place of employment. Your services
will be performed at the location where you were employed
immediately before the Effective Date. If the Company and you
agree, however, the location of your employment may be changed
without affecting your rights under this Agreement.
(c)
Expenses generally. You are
entitled to receive prompt reimbursement for all reasonable
expenses you incur. Reimbursement must be made in accordance with
the Company’s policies and procedures in effect on the
Effective Date (which may include a requirement that you submit an
itemized expense voucher).
(d)
Meetings, conventions, and
seminars. You are encouraged and are expected to attend seminars,
professional meetings and conventions, and educational courses. The
cost of travel, tuition or registration, food, and lodging for
attending those activities must be paid by the Company. Other costs
are your expense, unless the Company authorizes those costs. If
those other costs are authorized expenses, you must be reimbursed
after satisfying the Company’s policies and procedures for
such reimbursement (which may include a requirement that you submit
an itemized expense voucher).
(e)
Promotional expenses. You are
encouraged and are expected, from time to time, to incur reasonable
expenses for promoting the Company’s business. Such
promotional expenses include travel, entertainment (including
memberships in social and athletic clubs), professional
advancement, and community service expenses. You agree to bear
those expenses except to the extent that those expenses are
incurred at the Company’s specific direction or those
expenses are specifically authorized by the Company as expenses
that the Company may pay directly or indirectly through
reimbursement to you.
(f)
Outside activities. You may (i)
serve on corporate, civic, or charitable boards or committees; (ii)
deliver lectures, fulfill speaking engagements, or teach at
educational institutions; and (iii) manage personal investments.
Such activities must not significantly interfere with the
performance of your responsibilities for the Company. To the extent
that any such activities have been conducted by you before the
Effective Date, such prior conduct of activities and any subsequent
conduct of activities similar in nature and scope may not be deemed
to interfere with the performance of your responsibilities to the
Company.
(g)
Compensation and fringe benefits.
Your compensation (including your annual base salary and any
bonuses or incentive compensation) and benefits generally are the
same as those in effect on the Effective Date. Your compensation
and benefits are, however, subject to periodic review and
adjustment by the Company. This section of this Agreement does not
change the terms of any fringe benefit program or employee benefit
plan maintained by the Company and does not give you any additional
vested interest in any compensation or benefit to which you are not
already entitled under any such program or plan on the Effective
Date. Generally, your benefits include the following items, all of
which are subject to periodic review and adjustment: (i) You are
entitled to receive all group life, accidental death and
dismemberment, long-term disability, and medical insurance benefits
available to you according to Company policies and employee benefit
plans maintained by the Company that are in effect on the Effective
Date; (ii) You are entitled to paid vacation in accordance
with the Company’s policies in effect on the Effective Date;
(iii) You are entitled to sick leave in accordance with the
Company’s policies in effect on the Effective Date; and (iv)
You are entitled to participate in all employee benefit plans and
programs in which you participate on the Effective Date, whether or
not such plans or programs are subject to the Employee Retirement
Income Act of 1974, as amended (“ERISA”), including but
not limited to the Company’s Retirement Plan, Supplemental
Retirement Plan or any successor plans thereto, any incentive
compensation plans maintained by the Company or any successor
thereto, the Company’s Deferred Compensation Plan for Certain
Officers and any stock-based compensation plans maintained by the
Company or successor plans thereto and any savings or thrift plan
maintained by the Company,
3.
Extension of Agreement Upon
Change of Control . If a
Change of Control shall have occurred during the original or
extended term of this Agreement, this Agreement shall continue in
effect for a period of at least thirty-six (36) months beyond the
month in which such Change of Control occurred. The Terms of
Employment set forth in section 2 continue in effect after a Change
of Control and may not be changed to terms and conditions less
favorable than those in effect on the day immediately preceding a
Change of Control.
(i) No benefits shall be payable hereunder unless
there shall have been a Change of Control, as set forth below. For
purposes of this Agreement, a Change of Control shall be deemed to
have occurred if (A) any “person” (as such term is used
in sections 13(d) and 14(d) of the Securities Exchange Act of 1934,
as amended (the “Exchange Act”)), other than a trustee
or other fiduciary holding securities under an employee benefit
plan of the Company or a corporation owned, directly or indirectly,
by the shareholders of the Company in substantially the same
proportions as their ownership of stock of the Company, is or
becomes the “beneficial owner” (as defined in Rule
13d-3 under the Exchange Act), directly or indirectly, of
securities of the Company representing 20% or more of the combined
voting power of the Company’s then outstanding securities (a
“20% Holder”); or (B) during any period of two
consecutive years (not including any period prior to the execution
of this Agreement), individuals who at the beginning of such period
constitute the Board of Directors of the Company (the
“Board”) and any new director (other than a director
designated by a person who has entered into an agreement with the
Company to effect a transaction described in clauses (A) or (C) of
this subsection) whose election by the Board or nomination for
election by the Company’s shareholders was approved by a vote
of at least two-thirds (2/3) of the directors then still in office
who either were directors at the beginning of the period or whose
election or nomination for election was previously so approved,
cease for any reason to constitute a majority of the directors of
the Company; or (C) the shareholders of the Company approve a
merger or consolidation of the Company with any other corporation,
other than a merger or consolidation which would result in the
voting securities of the Company outstanding immediately prior
thereto continuing to represent (either by remaining outstanding or
by being converted into voting securities of the surviving entity)
at least 80% of the combined voting power of the voting securities
of the Company or such surviving entity outstanding immediately
after such merger or consolidation, or the shareholders of the
Company approve a plan of complete liquidation of the Company or an
agreement for the sale or disposition by the Company of all or
substantially all the Company’s assets; provided, however,
that a Change of Control shall not be deemed to have occurred under
clauses (A) or (C) above if a majority of the Continuing Directors
(as defined below) determine within five business days after the
occurrence of any event specified in clauses (A) or (C) above that
control of the Company has not in fact changed and it is reasonably
expected that such control of the Company in fact will not change.
Notwithstanding that, in the case of clause (A) above, the Board
shall have made a determination of the nature described in the
preceding sentence, if there shall thereafter occur any material
change in facts involving, or relating to, the 20% Holder or to the
20% Holder’s relationship to the Company, including, without
limitation, the acquisition by the 20% Holder of l% or more
additional outstanding voting stock of the Company, the occurrence
of such material change in facts shall result in a new Change of
Control for the purpose of this Agreement. In such event, the
second immediately preceding sentence hereof shall be effective. As
used herein, the term “Continuing Director” shall mean
any member of the Board on the date of this Agreement and any
successor of a Continuing Director who is recommended to succeed
the Continuing Director by a majority of Continuing Directors. If,
following a Change of Control, you are the beneficial owner of two
percent or more of the then-outstanding equity securities of the
Company, or its successor in interest, a majority of the Continuing
Directors may elect, within five business days after such Change of
Control, to terminate any benefits payable to you under this
Agreement after the date of such an election by the Continuing
Directors.
(ii) For purposes of this Agreement, a
“Potential Change of Control” shall be deemed to have
occurred if (A) the Company enters into an agreement, the
consummation of which would result in the occurrence of a Change of
Control; (B) any person (including the Company) publicly announces
an intention to take or to consider taking actions which if
consummated would constitute a Change of Control; (C) any person,
other than a trustee or other fiduciary holding securities under an
employee benefit plan of the Company or a corporation owned,
directly or indirectly, by the shareholders of the Company in
substantially the same proportion as their ownership of stock of
the Company, becomes the beneficial owner, directly or indirectly,
of securities of the Company representing 5% or more of the
combined voting power of the Company’s then outstanding
securities; or (D) the Board adopts a resolution to the effect
that, for purposes of this Agreement, a Potential Change of Control
has occurred. You agree that, subject to the terms and conditions
of this Agreement, in the event of a Potential Change of Control,
you will remain in the employ of the Company until the earliest of
(i) a date which is six (6) months from the occurrence of such
Potential Change of Control, (ii) the termination by you of your
employment by reason of Long-Term Disability or Retirement (at your
normal retirement age), as defined in subsection 5(i), or (iii) the
occurrence of a Change of Control.
5.
Termination Following Change of
Control . If any of the
events described in subsection 4(i) hereof constituting a Change of
Control shall have occurred, you shall be entitled to the benefits
provided in subsection 6(iii) hereof upon the subsequent
termination of your employment during the term of this Agreement
unless such termination is (A) because of your death, Long-Term
Disability or Retirement, (B) by the Company for Cause, or (C) by
you other than for Good Reason.
(i) Death, Long-Term Disability, or Retirement. If,
as a result of your incapacity due to physical or mental illness
which is determined to be total and permanent and to prevent you
from performing, with or without reasonable accommodation, the
essential functions of your employment by a physician and any other
consultants selected by the Company or its insurers and acceptable
to you or your legal representative, you shall have been absent
from the full-time performance of your duties with the Company for
six (6) consecutive months, and within thirty (30) days after
written notice of termination is given you shall not have returned
to the full-time performance of your duties, your employment may be
terminated for “Long -Term Disability”. Termination by
the Company or you of your employment based on
“Retirement” shall mean termination in accordance with
the Company’s retirement policy, including early retirement,
generally applicable to its salaried employees or in accordance
with any retirement arrangement established with your consent with
respect to you. Your death (“Death”) during the term of
this Agreement will terminate the Agreement.
(ii) Cause. Termination by the Company of your
employment for “Cause” shall mean termination upon (A)
the willful and continued failure by you to substantially perform
your duties with the Company (other than any such failure resulting
from your incapacity due to physical or mental illness or any such
actual or anticipated failure after the issuance of a Notice of
Termination, by you for Good Reason, as defined in subsection
5(iii)) after a written demand for substantial performance is
delivered to you by the Board, which demand specifically identifies
the manner in which the Board believes that you have not
substantially performed your duties, (B) the willful engaging by
you in conduct which is demonstrably and materially injurious to
the Company, monetarily or otherwise, or (C) your willful and
continued breach of a material term of this Agreement. For purposes
of this subsection, no act, or failure to act, on your part shall
be deemed “willful” unless done, or omitted to be done,
by you not in good faith and without reasonable belief that your
action or omission was in the best interest of the Company.
Notwithstanding the foregoing, you shall not be deemed to have been
terminated for Cause unless and until there shall have been
delivered to you a copy of a resolution duly adopted by the
affirmative vote of not less than three-quarters (3/4) of the
entire membership of the Board at a meeting of the Board called and
held for such purpose (after reasonable notice to you and an
opportunity for you, together with your counsel, to be heard before
the Board), finding that in the good faith opinion of the Board you
were guilty of conduct set forth above in clauses (A), (B), or (C)
of the first sentence of this subsection and specifying the
particulars thereof in detail.
(iii) Good Reason. You shall be entitled to terminate
your employment for Good Reason. For purposes of this Agreement,
“Good Reason” shall mean, without your express written
consent, the occurrence after a Change of Control of any of the
following circumstances unless, in the case of paragraphs (A), (E),
(F), (G), (H) or (I), such circumstances are fully corrected prior
to the Date of Termination specified in the Notice of Termination,
as defined in Subsections 6(iv) and 6(v), respectively, given in
respect thereof:
(A) the assignment to you of any duties
inconsistent with your status as Vice President-Public Affairs of
Green Mountain Power Corporation or a substantial adverse
alteration in the nature or status of your responsibilities from
those in effect immediately prior to the Change of
Control;
(B) a reduction by the Company in your annual base
salary as in effect on the date hereof or as the same may be
increased from time-to-time except for across-the-board salary
reductions similarly affecting all executives of the Company and
all executives of any person in control of the Company;
(C) the relocation of the Company’s principal
executive offices (presently located at 163 Acorn Lane, Colchester,
Vermont) to a location more than fifty miles distant from the
present location prior to the Change of Control, or the closing
thereof, or the Company’s requiring you to be based anywhere
other than within fifty miles of the present location, except for
required travel on the Company’s business to an extent
substantially consistent with your present business travel
obligations;
(D) the failure by the Company, without your
consent, to pay to you any portion of your current compensation
except pursuant to an across-the-board compensation deferral
similarly affecting all executives of the Company and all
executives of any person in control of the Company;
(E) the failure by the Company to offer you any
compensation plan introduced to other executives of similar
responsibility or any substitute plans adopted prior to the Change
of Control, unless an equitable arrangement (embodied in an ongoing
substitute or alternative plan) has been made with respect to such
plan; or the failure by the Company to continue your participation
in any such compensation plan (or in such substitute or alternative
plan) on a basis not materially less favorable, both in terms of
the amount of benefits provided and the level of your participation
relative to other participants, as existed at the time of the
Change of Control;
(F) the failure by the Company to continue to
provide you with the benefits substantially similar to those
enjoyed by you under any of the following plans or programs
maintained by the Company at the time of a Change of Control or the
taking of any action which would directly or indirectly materially
reduce any of such benefits, including but not limited to: (i)
fringe benefits, in accordance with the Company’s policies in
effect at the time of a Change of Control; (ii) group life,
accidental death and dismemberment, long-term disability, and
medical and dental insurance benefits available to you according to
Company policies and employee benefit plans maintained by the
Company that are in effect at the time of a Change of Control;
(iii) paid vacation in accordance with your agreements with
the Company’s and/or the Company’s policies in effect
at the time of a Change of Control; (iv) sick leave in accordance
with the Company’s policies in effect at the ti
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