EMPLOYMENT AGREEMENT
---------------------
This Employment Agreement is made and entered into as of the 9th day of
December, 1997, by and between New England Power Company, hereinafter referred
to as "the Company" and Andrew H. Aitken hereinafter referred to as
"Employee".
WHEREAS, the Company would like to have the option to retain the
employment of Employee until the closing date of sale of the Company's
generation assets to USGen Acquisition (USGen) under the Asset Purchase
Agreement by and among New England Power Company, The Narragansett Electric
Company and USGen Acquisition Corporation, dated as of August 5, 1997 ("the
Agreement").
WHEREAS, Employee is willing to change the terms of his employment
relationship with the Company and remain an employee of the Company as set
forth below.
NOW THEREFORE, in consideration of the mutual rights and obligations of
the parties, the parties hereby agree as follows:
1.0 Term
1.1 Subject to the provisions of this Employment Agreement, the
Company agrees to employ Employee and Employee agrees to remain in the
Company's employ, at the Company's sole option, until the earlier of February
5, 1999 or the Closing Date of the sale of the Company's generation assets to
USGen as set forth in Section 4.1 of the Agreement; provided, however, if (1)
the Agreement is terminated pursuant to Section 11.1 of the Agreement prior to
the Closing Date and the Company has given Employee notice under Section 3.1
below that it will not require Employee to remain with the Company after
August 7, 1998 (Notification Letter) or (2) the Company gives Employee a
Notification Letter, Employee shall be free to terminate his employment or
this Employment Agreement, except for the obligations set forth in Articles
3.0, 5.0 and 10.0 below, after the earlier of the Termination Date set forth
in Section 11.1 of the Agreement or August 7, 1998.
2.0 Duties
2.1 Employee shall diligently and conscientiously perform those duties
customarily rendered by a Vice President and Director of Environmental and
Safety and shall conduct his business in the usual, regular and ordinary
course consistent with good industry practice.
3.0 Compensation and Benefits
3.1 In exchange for entering into this Employment Agreement, the Company
shall pay Employee 4-1/2 months base pay (non-pensionable) in a lump sum
payment of Forty Seven Thousand Three Hundred Forty Five dollars ($47,345.00)
taxes withheld, eight to ten days following execution of this Employment
Agreement. On August 7, 1998, the Company shall pay Employee an additional 4-
1/2 months base pay based upon Employee's 1998 salary rate (non- pensionable)
in a lump sum payment taxes withheld, if and only if, the Company desires to
have Employee remain in its employ until the earlier of February 5, 1999 or
the Closing Date. If the Company is not going to require Employee to remain
in its employ until the earlier of February 5, 1999 or the Closing Date, the
Company shall send Employee a Notification Letter by July 6, 1998 and Employee
shall be free to terminate his employment or this Employment Agreement, except
for the obligations set forth in Articles 5.0 and 10.0 below anytime after
August 7, 1998. If Employee has accepted a position with USGen effective upon
closing prior to July 6, 1998, the Company will not factor such information
into its decision. Notwithstanding the foregoing, if the Company terminates
Employee's employment pursuant to Section 4.1(1), Employee shall be required
to repay the Company the amount of said lump sum payment, which Employee
agrees, the Company may, at its option, offset from Employee's final
paychecks or any other amount owing Employee.
3.2 Notwithstanding any other provision of this Employment Agreement, in
the event that any payment or benefit or portion thereof including any Special
Severance Plan Payments (Total Payment) received or to be received by Employee
in connection with a Change in Control as used in Section 280G of the Internal
Revenue Code or the termination of Employee's employment (whether pursuant to
the terms of this Employment Agreement or any other plan, arrangement or
agreement with the Company) is subject, in whole or part to the Excise Tax
under Section 280G of the Internal Revenue Code, then the Company shall reduce
the Total Payment to the extent necessary so that no portion of the Total
Payment is subject to the excise tax.
3.3 During the term of this Employment Agreement, the Company shall
continue to compensate Employee according to the compensation plans and
policies in effect for employees in ICP IC, in accordance with the Company's
payroll practices for salaried employees.
3.4 Employee shall continue to be entitled to participate in employee
benefit programs made available to employees in effect during the term of this
Employment Agreement in accordance with the terms and conditions of said
programs.
3.5 Employee shall continue to be eligible for the Special Severance Plan
made available to employees in ICP IC, in accordance with the qualifications
for and terms and conditions of said Special Severance Plan.
3.6 Except for claims to enforce this Employment Agreement, in
consideration of the payments provided under this Employment Agreement,
Employee on behalf of himself and his heirs and assigns fully and voluntarily
forever releases, waives and discharges the Company, including all past,
present and future subsidiaries, parents, affiliated companies and assigns and
all past, present, and future fiduciaries trustees, directors, officers,
agents and employees of any such companies from all claims, demands, causes of
action, suits and liabilities of any kind and nature, known or unknown,
asserted or unasserted up to the date of the signing of this Employment
Agreement pertaining to any and all such claims arising out of or related to
this Employment Agreement.
4.0 Termination of Employment
4.1 During the term of this Employment Agreement, the Company may only
terminate this Employment Agreement as set forth in Section 1.1 above or for
cause. For purposes of this Employment Agreement, cause shall mean (1) a
willful breach of duty or misconduct by Employee or (2) death of Employee.
4.2 During the term of this Employment Agreement, Employee may not
terminate this Employment Agreement for any reasons other than as set forth in
Section 1.1 above or due to death of Employee.
4.3 Except as defined in compensation plans, benefits or policies to
which Employee is otherwise entitled outside of this Employment Agreement, if
Employee dies during the term of this Employment Agreement, the Company shall
only be responsible for paying to the estate of Employee the compensation,
including any bonuses due Employee, which would otherwise be payable to
Employee up to the end of the month in which Employee's death occurs.
5.0 Standards of Conduct
5.1 Employee agrees to abide by the most recent version in effect of the
Standards of Conduct for NEES Companies signed by Employee.
5.2 Employee recognizes and agrees that Employee's obligations under
Section 5.1 herein are ongoing obligations which shall survive the expiration
and/or termination of this Employment Agreement.
6.0 Assignment
6.1 The Company shall have the right to assign this Employment Agreement
to an affiliate, and all covenants and agreements hereunder shall inure to the
benefit of and shall be binding upon said assigns.
6.2 Employee's obligations under this Employment Agreement shall be
binding upon Employee's heirs, executors, administrators and legal
representatives.
7.0 Legal Remedies
7.1 Departure of Employee in breach of this Employment Agreement would be
greatly detrimental to the Company, would be in violation of Article 1.0 and
would cause the Company irreparable harm. Therefore, the parties agree, that
the Company may pursue any legal remedies available to it for any breach or
threatened breach by Employee, including without limitation, money damages.
8.0 Waiver and Election of Remedies
8.1 Waiver by the Company of any term, condition or provision of this
Employment Agreement shall not be considered a waiver of that term, condition
or provision in the future. Any waiver by the Company of the rights listed in
this Employment Agreement shall be in writing and signed by a Company officer
in order to be binding.
9.0 Severability
9.1 In the event that any portion or part of this Employment Agreement is
deemed invalid, against public policy, void or otherwise unenforceable by a
court of law, the parties shall negotiate an equitable adjustment in the
affected provision of this Employment Agreement; however, the validity and
enforceability of the remaining portions hereof shall otherwise be fully
enforceable.
10.0 Confidentiality
10.1 Employee agrees, whether during the term of this Employment
Agreement or after, that he will keep the fact, terms, and amount of this
Employment Agreement completely confidential unless the fact (and only the
fact) that this Employment Agreement exists is waived in writing by the
President of the Company or unless such disclosure is required in a legal
proceeding to enforce its terms, as a defense to any claim or as otherwise
required by law. Notwithstanding the foregoing, Employee may disclose the
terms of this Employment Agreement to his financial and/or tax advisor,
attorney and family; provided said individuals agree to keep the terms of this
Employment Agreement confidential.
10.2 The Company agrees to handle this Employment Agreement in a
confidential manner. It will not disclose the terms or amount of this
Employment Agreement to anyone outside of the Company except to those at
USGen, or others who need to know to develop or effectuate this Employment
Agreement or except in a legal proceeding to enforce its terms, as a defense
to any claim or as otherwise required by law. In addition, the Company will
not disclose the terms or amount of this Employment Agreement to anyone inside
the Company except on a need to know basis.
11.0 Captions and Paragraph Headings
11.1 The captions and paragraph headings used in this Employment
Agreement are for convenience only and are not to be construed as a part of
this Employment Agreement.
12.0 Applicable Law
12.1 This Employment Agreement shall be construed under the laws of the
Commonwealth of Massachusetts. Employee agrees to submit to the personal
jurisdiction of the Massachusetts courts in respect to any matter or dispute
arising out of this Employment Agreement.
13.0 Notice
Any notice required or permitted to be given under this Employment
Agreement shall be sufficient if in writing, and if sent by registered mail,
return receipt requested, postage prepaid, addressed as set forth below or to
such other address as either party may specify to the other party, in writing,
from time to time:
The Company: Employee:
New England Power Company Andrew H. Aitken
25 Research Drive _______________________
Westborough, MA 01582 _______________________
Attn: Lawrence E. Bailey
14.0 Entire Agreement
14.1 This Employment Agreement constitutes the entire agreement between
Company and Employee with respect to the subject matter hereof and all
previous representations or agreements, whether written or oral are hereby
annulled and superseded. No change, modification or alteration of any of the
provisions of this Employment Agreement shall be binding unless such change,
modification or alteration shall have been approved in writing by a Company
officer.
Employee acknowledges that he has read this Employment Agreement,
understands it and is bound by its terms and conditions. Employee further
acknowledges that he has voluntarily executed this Employment Agreement in
accordance with the terms and conditions set forth herein.
IN WITNESS WHEREOF, each party hereto has caused this Employment
Agreement to be executed by its duly authorized representatives on the day and
year set forth below.
s/Andrew H. Aitken s/Lawrence E. Bailey
Employee Company
Date: December 9, 1997