EXHIBIT 10.28
EMPLOYMENT AGREEMENT
THIS AGREEMENT, made as of the 12th day of June, 2000, between THE
UNITED ILLUMINATING COMPANY, a Connecticut Corporation (the Company) and GREGORY
E. SAGES, an individual (the Officer),
WITNESSETH THAT
WHEREAS, the Company desires to employ the Officer as Vice President
Finance of the Company, and the Officer desires to be employed by the Company as
Vice President Finance.
NOW THEREFORE, in consideration of the foregoing and the respective
covenants and agreements of the parties herein contained, and the services to be
rendered to the Company pursuant hereto, and in order to provide an incentive to
the Officer to remain in the employ of the Company hereafter and, in particular,
in the event of any Change in Control (as herein defined) of the Company,
thereby establishing and preserving continuity of management, the Parties hereby
agree as follows:
(1) EMPLOYMENT
The Company hereby agrees to employ Gregory E. Sages, and
Gregory E. Sages hereby agrees to serve the Company, at the pleasure of the
Board of Directors of the Company, all upon the terms and conditions set forth
herein.
(2) POSITION AND DUTIES
The Officer shall be employed by the Company as Vice President Finance,
or in such other equivalent or higher officership position as the Company's
Board of Directors may determine. The Officer shall accept such employment and
shall perform and discharge, faithfully, diligently and to the best of the
Officer's abilities, the duties and obligations of the Officer's office and such
other duties as may from time to time be assigned to the Officer by, or at the
direction of, the Board of Directors of the Company, and shall devote
substantially all of the Officer's working time and efforts to the business and
affairs of the Company. Although a Change in Control of the Company shall not
affect the obligations of the Company and the Officer as set forth in the two
preceding sentences, at and after the date of any Change in Control the
Company's employment of the Officer shall also be without diminishment in the
Officer's management responsibilities, duties or powers.
(3) PLACE OF PERFORMANCE
In his employment by the Company, the Officer shall be based at the
executive offices of the Company situated within the Company's statutory service
area.
(4) COMPENSATION
(a) Base Salary. During the term of the Officer's employment
hereunder, the Officer shall receive a base salary (Base Salary) at an annual
rate of One Hundred Sixty-Five Thousand Dollars ($165,000). The Officer's Base
Salary rate shall be reviewed by the Board of Directors of the Company
contemporaneously with each review of the salary rates of the Company's other
officers by said Board of Directors, and may be revised upwards as a result of
any such review. The Officer's Base Salary may be revised downwards by said
Board of Directors contemporaneously with any general reduction of the salary
rates of the Company's other officers.
(b) Incentive Compensation. During the term of the Officer's
employment hereunder, the Officer shall be eligible to be designated by the
Board of Directors of the Company as a participant in each incentive
compensation program established for all officers of the Company.
For purposes of this Agreement, Total Compensation is defined,
as the sum of the Officer's Base Salary and any amount paid or payable pursuant
to this Section (4)(b).
(c) Business Expenses. During the term of the Officer's
employment hereunder, the Officer shall be entitled to receive prompt
reimbursement for all reasonable expenses incurred by the Officer (in accordance
with the policies and procedures established by the Board of Directors of the
Company from time to time for all of the Company's officers) in performing
services hereunder, provided that the Officer properly accounts therefor.
(d) Benefit Programs. During the term of the Officer's
employment hereunder, the Officer shall be entitled to participate in and
receive full benefits under all of the Company's employee benefit plans,
programs and arrangements for its officers, including, without limitation, its
retirement and pension plan programs. Nothing paid to the Officer under any such
plan, program or arrangement presently in effect or made available by the
Company in the future shall be deemed to be in lieu of compensation to the
Officer under any other Section of this Agreement.
(e) Vacations and Holidays. During the term of the Officer's
employment hereunder, the Officer shall be entitled to the number of paid
vacation days in each calendar year determined by the Board of Directors of the
Company from time to time for all of the Company's officers, and shall also be
entitled to all paid holidays afforded by the Company to its employees.
(5) TERMINATION
(a) The Officer's employment hereunder shall terminate upon
the Officer's death.
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(b) The Board of Directors of the Company may terminate the
Officer's employment hereunder at any time, with or without Cause. Prior to the
date of a Change in Control, the Company shall be deemed to have Cause to
terminate the Officer's employment hereunder only upon the Officer's (A)
continued failure to perform and discharge the duties or obligations of the
Officer's office, or such other duties as may from time to time be assigned to
the Officer by, or at the direction of, the Board of Directors, faithfully,
diligently, to the best of the Officer's abilities, and in accordance with
standards accepted in the electric utility industry, in the opinion of a
majority of the members of the Board of Directors of the Company, or (B)
misconduct that is injurious to the Company, or (C) conviction of a felony
involving the personal dishonesty or moral turpitude of the Officer, or (D)
total and permanent physical or mental disability, or (E) absence from work on a
full-time basis, due to physical or mental illness, for an uninterrupted 365-day
period. On and after the date of a Change in Control, the Company shall be
deemed to have Cause to terminate the Officer's employment hereunder only upon
the Officer's (F) conviction of a felony involving the personal dishonesty or
moral turpitude of the Officer, or (G) total and permanent physical or mental
disability, or (H) absence from work on a full-time basis, due to physical or
mental illness, for an uninterrupted 365-day period.
(c) The Officer may terminate the Officer's employment
hereunder, upon at least thirty (30) days' prior Notice of Termination delivered
to the Company, for failure of the Company to observe and perform one or more of
its obligations under Sections (1), (2), (3) and/or (4) hereof, which failure
the Company fails to remedy within such notice period (a Breach by the Company)
at a time when the Officer is not in default of any of the Officer's obligations
under Sections (1) and/or (2) hereof. The Officer may terminate his employment
hereunder in the absence of a Breach by the Company, effective upon at least six
(6) months' prior Notice of Termination delivered to the Company.
(d) Notice of Termination. Any termination of employment, by
the Company or by the Officer, shall be communicated by delivery of a written
Notice of Termination to the other party.
(e) Date of Termination. For purposes of this Agreement, the
Date of Termination is defined as: if the Officer's employment is terminated (A)
by his death, the date of his death, or (B) pursuant to Section (5)(b) or
Section (5)(c) hereof, the date specified in the Notice of Termination.
(6) CONSEQUENCES OF TERMINATION
(a) If the Officer's employment terminates by reason of the
Officer's death, the Company shall pay to the persona
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representative and/or spouse of the Officer the Officer's Total Compensation
earned prior to the Date of Termination, any amounts payable pursuant to
Sections (4)(c) and (4)(d) hereof and any benefits or amounts payable under any
deferred compensation plan in which the Officer had been a participant, and the
Company shall have no further obligation under this Agreement.
(b) If the Officer terminates the Officer's employment
hereunder in the absence of a Breach by the Company and upon at least six (6)
months' prior Notice of Termination, the Company shall pay to the Officer and/or
the Officer's personal representative and/or spouse the Officer's Total
Compensation earned prior to the Date of Termination, any amounts payable
pursuant to Sections (4)(c) and (4)(d) hereof and any benefits or amounts
payable under any deferred compensation plan in which the Officer had been a
participant, and the Company shall have no further obligation to the Officer
and/or the Officer's personal representative and/or spouse under this Agreement
or on account of, or arising out of, the termination of the Officer's
employment.
(c) If the Company terminates the Officer's employment
hereunder for Cause, or if the Officer terminates the Officer's employment
hereunder in the absence of a Breach by the Company and upon less than six (6)
months' prior Notice of Termination, the Company shall pay to the Officer the
Officer's full Base Salary earned prior to the Date of Termination, any amounts
payable pursuant to Sections (4)(c) and (4)(d) hereof and any benefits or
amounts payable under any deferred compensation plan in which the Officer had
been a participant, and, provided that the Company is not in default of any of
its obligations hereunder, the Company shall have no further obligation to the
Officer under this Agreement or on account of, or arising out of, the
termination of the Officer's employment.
(d) If the Company terminates the Officer's employment
hereunder without Cause, or if the Officer terminates the Officer's employment
hereunder on account of a Breach by the Company:
(i) The Company shall pay to the Officer the
Officer's Total Compensation earned prior to the Date of Termination, any
amounts payable pursuant to Sections 4(c) and 4(d) hereof and any benefits or
amounts payable under any deferred compensation plan in which the Officer had
been a participant.
(ii) The Company shall afford the Officer the
severance benefits set forth on Schedule A attached hereto.
(iii) The payment to, and acceptance by, the Officer
of any sum of money or benefit prescribed in this Section (6)(d) shall effect
and evidence a release by the Officer of any
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and all claims against the Company on account of, or arising out of, the
termination of the Officer's employment.
(7) CHANGE IN CONTROL
For purposes of this Agreement, Change in Control shall mean any of the
following events:
(a) any merger or consolidation of the Company with any
corporate shareholder or group of corporate shareholders holding twenty-five
percent (.25) or more of the Common Stock of the Company or with any other
corporation or group of corporations which is, or after such merger or
consolidation would be, or be affiliated with, a shareholder owning at least
twenty-five percent (.25) of the Common Stock of the Company; or
(b) any sale, lease, exchange, mortgage, pledge, transfer or
other disposition to or with any shareholder or group of shareholders holding
twenty-five percent (.25) or more of the Common Stock of the Company, or any
affiliate of such shareholder or group of shareholders, of any assets of the
Company having an aggregate fair market value of $50 million or more; or
(c) the issuance or sale by the Company of any securities of
the Company to any shareholder or group of shareholders holding twenty-five
percent (.25) or more of the Common Stock of the Company, or to any affiliate of
such shareholder or group of shareholders, in exchange for cash, securities or
other consideration having an aggregate fair market value of $50 million or
more; or
(d) the implementation of any plan or proposal for the
liquidation or dissolution of the Company proposed by or on behalf of any
shareholder or group of shareholders owning at least twenty-five percent (.25)
of the Common Stock of the Company, or any affiliate of such shareholder or
group of shareholders; or
(e) any reclassification of securities (including a reverse
stock split), or recapitalization of the Company or any other transaction which
has the effect, directly or indirectly, of increasing the proportionate share of
outstanding shares of any class of equity securities, or securities convertible
into any equity securities, of the Company, which is directly or indirectly
owned by a shareholder or group of shareholders owning at least twenty-five
percent (.25) of the Common Stock of the Company, or any affiliate of such
shareholder or group of shareholders.
The Board of Directors of the Company may, from time to time, by the
affirmative vote of not less than a majority of the entire membership of said
Board of Directors, at a meeting of said Board of Directors called and held for
the purpose, modify the phrase "twenty-five percent (.25)" in one or more of the
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foregoing Sections (7)(a), (7)(b), (7)(c), (7)(d) and/or (7)(e) to a lesser
percentage, but not less than twenty percent (.20).
(8) ADDITIONAL CONSEQUENCES OF A CHANGE IN CONTROL
(a) In the event that a Change in Control has been approved by
all necessary shareholder, creditor and regulatory actions, the Company will,
not later than the day prior to the date of the Change in Control, pay to the
Trustee of The United Illuminating Company Supplemental Retirement Benefit Trust
established pursuant to the Agreement, made as of the 1st day of June, 1995
between the Company and State Street Bank and Trust Company, as Trustee, for the
benefit of the Officer, cash in an amount equal to: (A) In the event that the
Officer's employment has been terminated or will be terminated prior to the date
of the Change in Control, a sum, calculated by the Company's independent
certified public accountants, reasonably sufficient to pay and discharge the
largest of the Company's future obligations, if any, to the Officer and/or his
personal representative and/or spouse, under Section (6)(a), Section (6)(b) or
Section (6)(d) hereof; or (B) in the event that the Officer's employment has not
been terminated and will not be terminated prior to the date of the Change in
Control, a sum, calculated by the Company's independent certified public
accountants, reasonably sufficient to pay and discharge the Company's
obligations to the Officer under Section (6)(d) hereof assuming, for purposes of
such calculation, that the Officer's employment is terminated under said Section
(6)(d) by a Notice of Termination delivered on the date of the Change in Control
and specifying an immediate Date of Termination.
(b) On and after the date of the Change in Control, the
Officer's Base Salary may not be reduced by the Board of Directors to an annual
rate less than the rate fixed by the Board of Directors of the Company as a
result of its most recent review of salary rates, pursuant to Section (4)(a)
hereof, prior to the date of the Change in Control.
(9) TAX SAVINGS PROVISION
If any portion of the payments which the Officer has the right to
receive from the Company, or any affiliated entity, hereunder would constitute
"excess parachute payments" (as defined in Section 280G of the Internal Revenue
Code, and not governed by the terms defined in this Agreement) subject to the
excise tax imposed by Section 4999 of the Internal Revenue Code, such excess
parachute payments shall be reduced to the largest amount that will result in no
portion of such excess parachute payments being subject to the excise tax
imposed by Section 4999 of the Internal Revenue Code.
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(10) SUCCESSORS; BINDING AGREEMENT
(a) The Company shall pay to the Officer and/or the Officer's
personal representative and/or spouse all legal fees and expenses and court
costs, if any, incurred by the Officer and/or the Officer's representative
and/or spouse in successful litigation to enforce the Officer's rights under
this Agreement.
(b) The Company will require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business or assets of the Company, by agreement in form
and substance reasonably satisfactory to the Officer, to expressly assume and
agree to perform this Agreement in the same manner and to the same extent that
the Company would be required to perform it if no such succession had taken
place. Failure of the Company to obtain such agreement by the effectiveness of
any such succession shall be a breach of this Agreement and shall entitle the
Officer to compensation from the Company in the same amount and upon the same
terms as the Officer would be entitled to hereunder if the Officer terminated
the Officer's employment upon Breach by the Company, except that, for purposes
of implementing the foregoing, the date on which any such succession becomes
effective shall be deemed the Date of Termination. As used in this Agreement,
the term "the Company" shall include The United Illuminating Company, any parent
and any successor to the business or assets of either as aforesaid which
executes and delivers the agreement provided for in this Section (10) or which
otherwise becomes bound by all the terms and provisions of this Agreement by
operation of law.
(c) This Agreement and all rights of the Officer hereunder
shall inure to the benefit of and be enforceable by the Officer's personal or
legal representatives, executors, administrators, successors, heirs,
distributees, devisees and legatees. If the Officer should die while any amounts
would still be payable to the Officer hereunder if the Officer had continued to
live, all such amounts, unless otherwise provided herein, shall be paid in
accordance with the terms of this Agreement to the Officer's devisee, legatee or
other designee or, if there be no such designee, to the Officer's estate.
(11) NOTICE
For the purpose of this Agreement, notices and all other communications
to either party hereunder provided for in the Agreement shall be in writing and
shall be deemed to have been duly given when delivered or mailed by United
States certified or registered mail, return receipt requested, postage prepaid,
addressed, in the case of the Company, to The United Illuminating Company, 157
Church Street, New Haven, Connecticut, Attention: Secretary, or, in the case of
the Officer, to the Officer at 157 Church Street, New Haven Connecticut, or to
such other address as either party shall designate by giving written notice of
such change to the other party.
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(12) MISCELLANEOUS
No provision of this Agreement may be modified, waived or discharged
unless such waiver, modification or discharge is approved by the Board of
Directors of the Company and agreed to in a writing signed by the Officer and
such officer of the Company as may be specifically authorized by the Board of
Directors of the Company. No waiver by either party hereto at any time of any
breach by the other party hereto of, or compliance with, any condition or
provision of this Agreement to be performed by such other party shall be deemed
a waiver of any similar or dissimilar provisions or conditions at the same or at
any prior or subsequent time. No agreements or representations, oral or
otherwise, express or implied, with respect to the subject matter hereof have
been made by either party that are not set forth expressly in this Agreement.
The validity, interpretation, construction and performance of this Agreement
shall be governed by the laws of the State of Connecticut.
(13) VALIDITY
The validity or unenforceability of any provision or provisions of this
Agreement shall not affect the validity or enforceability of any other provision
of this Agreement, which shall remain in full force and effect.
(14) SURVIVAL
The provisions of this Agreement shall not survive the termination of
this Agreement or of the Officer's employment hereunder, except that the
provisions of Sections (4), (6), (8), (9), (10), and (11) hereof shall survive
such termination and shall be binding upon the Company's successors and assigns.
(15) COUNTERPARTS
This Agreement may be executed in one or more counterparts, each of
which shall be deemed to be an original but all of which together will
constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the date and year first above written.
Attest: THE UNITED ILLUMINATING COMPANY
/s/ Susan E. Allen By: /s/ Nathaniel D. Woodson
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Secretary Chairman, President and
Chief Executive Officer
/s/ Gregory E. Sages
---------------------------
Gregory E. Sages
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SCHEDULE A
Severance Benefits
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The Company shall:
(i) pay to the Officer, within 30 days, a lump sum payment in an amount
equal to two (2) times the Officer's Total Compensation immediately prior
to the date of his termination; and
(ii) maintain in full force and effect, for the continued benefit of the
Officer for the period ending on the second anniversary of the date of his
termination, all employee benefit plans and programs in which the Officer
was entitled to participate immediately prior to the date of his
termination, provided that the Officer's continued participation is
possible under the general terms and provisions of such plans and programs
and applicable law and, if the Officer's participation in any such plan or
program is barred as a result of his termination, the Company shall arrange
to provide the Officer with benefits substantially similar on an after-tax
basis to those that he would have been entitled to receive under such plan
or program; and
(iii) afford to the Officer the addition of two (2) years of service deemed
as an employee of the Company in the calculation of the benefits payable to
the Officer under the retiree medical benefit plan(s) of the Company and in
the calculation of the benefits payable to the Officer as a supplemental
retirement benefit under his Employment Agreement.