Exhibit 10.29
EMPLOYMENT AGREEMENT
AGREEMENT made as of this 12th day of December 2000, by and between
Orion Power Holdings, Inc., a Delaware corporation (the "Company") and Michael
Gluckman (the "Employee").
WHEREAS, the Company wishes to employ the Employee as Senior Vice
President, Corporate Strategy and Development, with the responsibilities and
duties of an executive officer of the Company; and
WHEREAS, the Employee wishes to accept such employment and to render
services to the Company on the terms set forth herein, and in accordance with,
the provisions of this Employment Agreement (the "Agreement").
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, the parties hereto agree as follows:
1. EMPLOYMENT. Subject to the terms and provisions of this Agreement,
the Company hereby employs the Employee and the Employee hereby accepts such
employment by the Company upon the terms and conditions hereinafter set forth.
2. DUTIES. During the Employment Term (as defined in Section 7
hereof), the Employee shall serve as Senior Vice President, Corporate Strategy
and Development of the Company and the Employee shall perform such duties,
services and responsibilities and have the authority commensurate to such
position as determined from time to time by the Board of Directors of the
Company (the "Board"). The Employee shall report directly to the Chief Executive
Officer of the Company.
The Employee shall devote his full business time, attention and skill
to the performance of such duties, services and responsibilities, and will use
his best efforts to promote the interests of the Company. The Employee will not,
without the prior written approval of the Board, engage in any other business
activity which could interfere with the performance of his duties, services and
responsibilities hereunder or which is in violation of policies established from
time to time by the Company.
3. MONETARY REMUNERATION.
(a) BASE SALARY. During the Employment Term, the Company shall
pay to the Employee in consideration of the performance by the Employee of the
Employee's obligations hereunder (including any services as an officer,
employee, or otherwise), a salary (the "Base Salary") at an annual rate of two
hundred and twenty-five thousand dollars ($225,000). The Base Salary shall be
reviewed, and may be increased (but not decreased), in accordance with the
Company's salary review program or practice applicable to senior executive
officers of the Company. Without limiting the generality of the foregoing, the
Base Salary shall be increased on or before March 1 of each calendar year,
beginning with calendar year 2002, by a percentage no less than the percentage
increase in the United States Consumer Price Index for the Washington-Baltimore
metropolitan area for the preceding calendar year.
The Base Salary shall be payable in accordance with the normal payroll
practices of the Company then in effect and subject to all applicable taxes
required to be withheld by the Company pursuant to federal, state or local law.
The Employee shall be solely responsible for taxes imposed on the Employee by
reason of any compensation and benefits provided hereunder.
(b) ANNUAL BONUS. The Company shall provide the Employee the
opportunity to earn an annual incentive bonus (the "Bonus"). Such Bonus shall be
variable based upon the attainment of performance criteria described below,
shall be payable in an amount equal to 50% of the Base Salary in effect on the
last day of the applicable fiscal year (upon attainment of targeted performance
criteria), may be payable at less than 50% of such Base Salary (at agreed-upon
levels of partial attainment of targeted performance criteria), may be payable
in amounts in excess of 50% of such Base Salary (upon exceeding targeted
performance criteria), but shall in no event exceed 100% of such Base Salary, in
respect of each of the Company's fiscal years ending during the Employment Term,
beginning with the 2001 fiscal year. Each annual Bonus shall be payable promptly
following a determination by the Board (or a designated committee thereof) that
the applicable performance criteria have been satisfied, but in no event later
than thirty (30) days after the Company's receipt of the report prepared by its
regular independent certified public accountants with respect to the Company's
financial statements for such fiscal year. For each fiscal year during the
Employment Term, appropriate performance criteria shall be developed jointly and
in good faith by the Employee and the Board (or designated committee thereof) in
connection with the development and approval of an annual strategic plan for the
Company. Notwithstanding the foregoing, the Company and the Employee acknowledge
that such performance criteria may consist of specific financial or nonfinancial
objectives relating to both the Company and the Employee that are established in
accordance with the foregoing procedures.
4. BENEFITS.
(a) In addition to the payments described above, during the
Employment Term, the Employee shall be entitled to participate in, in accordance
with the terms and conditions of the applicable plan, program or arrangement,
all of the employee benefit plans or programs, and all of the fringe benefit and
executive perquisites, made available by the Company, to, or for the benefit of,
its senior executive officers or to its employees in general, as such plans,
programs or arrangements may be in effect from time to time. The Employee's
participation in any such plans, programs and arrangements shall be on a basis
no less favorable than that of other senior executive officers of the Company.
Nothing contained in this Agreement shall require the Company to establish any
plan, program or arrangement or shall preclude the Company from amending or
terminating any plan, program or arrangement which heretofore exists or may
hereinafter be established; provided, HOWEVER, it is the Company's intention
that the general type and level of benefits provided by the Company to its
officers and employees shall be, in the aggregate, generally comparable to the
type and level of benefits offered by similar companies in the Company's general
industry, as determined in good faith by the Board.
(b) During the Employment Term, the Company shall reimburse the
Employee for all reasonable business expenses incurred by the Employee in
carrying out the Employee's duties, services and responsibilities under this
Agreement, provided that the Employee complies with the generally applicable
policies, practices and procedures of the Company for submission of expense
reports, receipts or similar documentation of such expenses.
5. EQUITY AWARDS.
(a) 1998 STOCK INCENTIVE PLAN. Reference is hereby made to the
Company's 1998 Stock Incentive Plan, as amended from time to time (the "Plan").
Defined terms used in this Section 5 but not defined herein shall have the
meanings set forth in the Plan.
(b) INITIAL BONUS OPTION. As soon as practicable after the date
hereof, the Company shall grant to the Employee a nonqualified stock option to
purchase one hundred thousand (100,000) shares of publicly traded Common Stock
(the "Initial Bonus Option") with a per share exercise price equal to the price
per share of Common Stock at the close of business on the Commencement Date
(defined in Section 7). The Initial Bonus Option shall vest ratably on a daily
basis over the period beginning on the date the Initial Bonus Option is granted
pursuant to this Section 5(b) and ending on the fifth anniversary of such date,
PROVIDED, HOWEVER, that no Initial Option shall vest prior to the Employee's
completion of one (1) year of continuous service beginning on the Commencement
Date and ending on the first anniversary of the Commencement Date (the "One Year
Service Requirement") (and all Initial Options outstanding on the first
anniversary of the Commencement Date shall vest on that date to the extent they
would have vested as of that date but for the operation of this proviso).
(c) ANNUAL OPTIONS. On January 1, 2002 and on each January 1
thereafter during the Employment Term, the Company shall grant to the Employee a
nonqualified option to purchase a number of shares of Common Stock as determined
by the Board in its sole discretion (each an "Annual Option"); PROVIDED,
HOWEVER, that each Annual Option shall entitle the Employee to purchase a
minimum of thirty thousand (30,000) shares of Common Stock. Each Annual Option
shall have a per share exercise price equal to the Fair Market Value of a share
of Common Stock on the date the Annual Option is granted and shall vest ratably
on a daily basis over the period beginning on the date the Annual Option is
granted pursuant to this Section 5(c) and ending on the third anniversary of
such date, PROVIDED, HOWEVER, that no Annual Option shall vest prior to the
Employee's completion of the One Year Service Requirement (and all Annual
Options outstanding on the first anniversary of the Commencement Date shall vest
on that date to the extent they would have vested as of that date but for the
operation of this proviso).
(d) ACCELERATED VESTING AND OTHER CONDITIONS. Notwithstanding the
foregoing provisions of this Section 5, the Initial Bonus Option and the Annual
Options granted to the Employee by the Company (collectively, "the Options")
shall vest fully upon the termination of the Employee's employment for
circumstances described in clause (i), (iv) or (v) of the definition of Good
Reason. The Options granted pursuant to Sections 5(b) and (c) shall be subject
to such additional terms and conditions as are set forth in an option agreement
substantially in the form attached as Exhibit A hereto.
(e) STOCK GROWTH INCENTIVE PLAN. After the date hereof, the
Company shall establish and adopt a stock growth incentive plan pursuant to
which a specified group of officers, including the Employee, and other key
employees of the Company, as determined in good faith by the Board, will be
eligible to receive additional stock options subject to such terms and
conditions as determined by the Board in good faith.
6. VACATIONS. During the Employment Term, the Employee shall be
entitled to vacation on a basis consistent with that of other senior executive
officers of the Company.
7. EMPLOYMENT TERM.
The "Employment Term," as used in this Agreement, shall mean the
period commencing on December 12, 2000 (the "Commencement Date") and terminating
on the earliest of the following to occur:
(a) the death of the Employee ("Death");
(b) the termination of the Employee's employment by mutual
agreement of the Company and the Employee;
(c) the termination of the Employee's employment by the Company
for Cause (as defined in Section 8 hereof);
(d) the termination of the Employee's employment by the Employee
for Good Reason (as defined in Section 9 hereof);
(e) the Disability of the Employee (as determined in accordance
with Section 10 hereof);
(f) the termination of the Employee's employment by the Company
other than a termination by the Company for Cause, Disability or Death; and
(g) the fifth anniversary of the day preceding the first day of
the Employment Term.
8. CAUSE. In the event of (i) any material breach of the provisions of
this Agreement by the Employee, (ii) the Employee's continued failure to perform
reasonably assigned duties after a demand for substantial performance is
delivered to the Employee by the Board or the Chief Executive Officer of the
Company (where such demand specifically identifies the manner in which the Board
or the Chief Executive Officer of the Company believes that the Employee has not
substantially performed his duties) and the passage of a reasonable period of
time to comply with such demand, (iii) the Employee's willful misconduct or
gross negligence, (iv) conduct by the Employee involving dishonesty for personal
gain, fraud or unlawful activity which is injurious to the Company, or (v) a
conviction of or plea of NOLO CONTENDERE to a felony or any crime involving
moral turpitude; PROVIDED, HOWEVER, that the Employee shall not be terminated
for Cause under any of clauses (i) through (iii) above unless there shall have
been delivered to the Employee a copy of a resolution duly adopted by the Board,
at a meeting of such Board (after reasonable notice to the Employee and an
opportunity for the Employee, together with his counsel, to be heard at such
meeting), finding that in the good faith opinion of the Board, the Employee had
engaged in conduct of the type described in any of clauses (i) through (iii)
above and specifying the particulars thereof.
9. GOOD REASON. In the event of (i) any material breach by the Company
of this Agreement, any Option Agreement or other material agreement entered into
with, or provided to, the Employee, (ii) a material reduction in the Employee's
title, duties, responsibilities or status, (iii) the assignment to the Employee
of a material amount of different or additional duties that are significantly
inconsistent with the Employee's position, (iv) the relocation of the Employee,
the Company's principal executive offices or all or substantially all of the
Company's executive level employees without the Employee's consent, to any
location outside of the Baltimore, Maryland metropolitan region or (v) a Change
in Control (as defined in the Plan, as in effect from time to time) shall occur,
the Employee shall have the right to terminate his employment for "Good Reason"
by giving the Company notice in writing of the reason for such termination and
the Employment Term shall terminate on the date of the Employee's termination of
employment; PROVIDED, HOWEVER, that with respect to clause (v) above, the
Employee's right to terminate his employment for Good Reason shall lapse sixty
(60) days following the occurrence of the Change in Control. Anything in this
Agreement to the contrary notwithstanding, any termination of the Employee by
the Company without Cause at any time when the Employee has a basis to resign
under clause (i), (iv) or (v) of the definition of Good Reason shall be treated
for all purposes of this Agreement and all related agreements as a termination
by the Employee for Good Reason under such clause (i), (iv) or (v), as
appropriate.
10. DISABILITY. In the event of a physical or mental infirmity which
renders the Employee unable to perform his duties, services and responsibilities
hereunder for a total of one hundred and twenty (120) calendar days in any
twelve (12)-month period (a "Disability"), the Employment Term shall
automatically terminate on such one hundred and twentieth calendar day, without
any further or additional action on the part of the Company.
11. TERMINATION PAYMENTS.
(a) In the event that the Employment Term is terminated for any
reason other than by the Company without Cause or by the Employee with Good
Reason: (A) the Company shall pay to the Employee any Base Salary accrued
hereunder on or prior to the date of termination but not theretofore paid to the
Employee; and (B) the Employee shall be entitled, in accordance with the terms
and conditions of the applicable plan, program or arrangement, to all benefits
accrued under any benefit plans, programs or arrangements in which the Employee
shall be a participant as of the date of termination, including any Bonus
earned, declared and payable (but not yet paid) in accordance with Section 3(b)
hereof in respect of the then current fiscal year, or if the Bonus in respect of
the then current fiscal year has not yet been earned, declared and become
payable, in respect of the fiscal year ended immediately prior to the date of
termination (the "Accrued Benefits").
(b) Subject to paragraph (c) of this Section 11 below, in the
event that the Employment Term is terminated by the Company without Cause or by
the Employee for Good Reason: (A) the Company shall pay to the Employee any Base
Salary accrued hereunder on or prior to the date of termination but not
theretofore paid to the Employee; (B) the Company shall pay the Employee a lump
sum amount equal to two (2) times the Employee's annual Base Salary at the time
of the Employee's termination of employment; (C) the Company shall pay the
Employee an amount equal to two (2) times the Bonus paid (or to be paid) to the
Employee for the then current fiscal year, or if the Bonus in respect of the
then current fiscal year has not yet been earned, declared and become payable,
in respect of the fiscal year preceding the fiscal year in which such
termination occurs; and (D) the Employee shall be entitled to the Accrued
Benefits.
(c) All payments required to be made by the Company pursuant to
Section 11(a) in connection with the termination of the Employee's employment
shall be payable within 15 days after the effective date of such termination.
(d) The foregoing payments and benefits upon termination shall
constitute the exclusive payments and benefits which shall be due the Employee
upon a termination of the Employment Term and shall be in lieu of any such
benefits under any plan, program, policy or other arrangement which has
heretofore been or shall hereafter be established by the Company. The Employee
shall have no other rights (other than the Employee's rights to the Accrued
Benefits as provided herein) or remedies under this Agreement or any other plan,
program or arrangement which has heretofore been or shall hereafter be
established by the Company or otherwise in the event that the Employment Term is
terminated by the Company without Cause or by the Employee for Good Reason. The
Employee shall not be required to mitigate the foregoing payments by seeking
employment or otherwise.
(e) Notwithstanding anything contained in this Agreement to the
contrary, to the extent that any payment or distribution of any type to or for
the benefit of the Employee by the Company, any affiliate of the Company, any
person who acquires ownership or effective control of the Company or ownership
of a substantial portion of the Company's assets (within the meaning of Section
280G of the Internal Revenue Code of 1986, as amended (the "Code"), and the
regulations thereunder), or any affiliate of such person, whether paid or
payable or distributed or distributable pursuant to the terms of this Agreement
or otherwise (the "Total Payments") is or will be subject to the excise tax
imposed under Section 4999 of the Code (the "Excise Tax"), then the Total
Payments shall be reduced (but not below zero) if and to the extent that a
reduction in the Total Payments would result in the Employee retaining a larger
amount, on an after-tax basis (taking into account federal, state and local
income taxes and the Excise Tax), than if the Employee received the entire
amount of such Total Payments. Unless the Employee shall have given prior
written notice specifying a different order to the Company to effectuate the
foregoing, the Company shall reduce or eliminate the Total Payments, by first
reducing or eliminating the portion of the Total Payments which are not payable
in cash and then by reducing or eliminating cash payments, in each case in
reverse order beginning with payments or benefits which are to be paid the
latest in time. Any notice given by the Employee pursuant to the preceding
sentence shall take precedence over the provisions of any other plan,
arrangement or agreement governing the Employee's rights and entitlements to any
benefits or compensation. The determination of whether the Total Payments shall
be reduced pursuant to the foregoing and the amount of such reduction shall be
made, at the Company's expense, by an accounting firm selected by the Company
which is one of the five largest accounting firms in the United States (other
than the Company's regular independent auditor).
12. EMPLOYEE'S REPRESENTATION AND ACKNOWLEDGMENT. The Employee
represents to the Company that his execution and performance of this Agreement
shall not be in violation of any agreement or obligation (whether or not
written) that he may have with or to any person or entity, including without
limitation, any prior employer. The Employee hereby acknowledges and agrees that
this Agreement (and the Exhibits hereto and any other agreement or obligation
referred to herein) shall be an obligation solely of the Company, and the
Employee shall have no recourse whatsoever against any stockholder of the
Company or any of their respective affiliates.
13. EMPLOYEE COVENANTS.
(a) UNAUTHORIZED DISCLOSURE. The Employee agrees and understands
that in the Employee's position with the Company, the Employee has been and will
be exposed to and receive information relating to the confidential affairs of
the Company, including but not limited to technical information, business and
marketing plans, strategies, customer information, other information concerning
the Company's products, promotions, development, financing, expansion plans,
business policies and practices, and other forms of information considered by
the Company to be confidential and in the nature of trade secrets. The Employee
agrees that during the Employment Term and thereafter, the Employee will keep
such information confidential and will not disclose such information, either
directly or indirectly, to any third person or entity without the prior written
consent of the Company; PROVIDED, HOWEVER, that (i) the Employee shall have no
such obligation to the extent such information is or becomes publicly known
other than as a result of the Employee's breach of his obligations hereunder and
(ii) the Employee may, after giving prior notice to the Company to the extent
practicable under the circumstances, disclose such information to the extent
required by applicable laws or governmental regulations or judicial or
regulatory process. This confidentiality covenant has no temporal, geographical
or territorial restriction. Upon termination of the Employment Term, the
Employee will promptly supply to the Company all property, keys, notes,
memoranda, writings, lists, files, reports, customer lists, correspondence,
tapes, disks, cards, surveys, maps, logs, machines, technical data or any other
tangible product or document which has been produced by, received by or
otherwise submitted to the Employee in the course or otherwise as a result of
the Employee's employment with the Company during or prior to the Employment
Term.
(b) NON-COMPETITION. By and in consideration payments and
benefits to be provided to the Employee by the Company hereunder, the Employee's
exposure to the proprietary information of the Company and as an inducement to
the Company to enter into this Agreement with the Employee, the Employee agrees
that while he is employed by the Company and for a period of two (2) years after
the Employee's termination of employment with the Company for any reason (the
"Noncompetition Term"), the Employee will not, directly or indirectly own,
manage, operate, join, control, be employed by, or participate in the ownership,
management, operation or control of, or be connected in any manner, including
but not limited to, holding the positions of shareholder, director, officer,
consultant, independent contractor, employee, partner, or investor, with any
Competing Enterprise; PROVIDED, HOWEVER, Employee shall not be subject to the
covenants contained in this Section 13(b) or Section 13(c) following the
termination of the Employee by the Company without Cause following the
occurrence of a Change in Control (as defined in the Plan, as in effect from
time to time), or termination of the Employee's employment for circumstances
described in clause (v) of the definition of Good Reason. For purposes of this
paragraph, the term "Competing Enterprise" shall mean any person, corporation,
partnership or other entity (or any of their respective subsidiaries) which,
directly or indirectly, is principally engaged in the business of investing in
or managing the operations of electric generating assets for wholesale resale in
the United States and Canada at market-based rates. Following termination of the
Employment Term, the Employee shall promptly furnish in writing to the Company,
its subsidiaries or affiliates, any information reasonably requested by the
Company (including any third party confirmations) to the extent necessary to
confirm the Employee's compliance with the provisions of this Section 13(b).
Notwithstanding anything contained in this Section 13(b) to the contrary, the
Employee shall not be prohibited from acquiring less than three percent (3%) of
any class of securities of a publicly traded corporation.
(c) NON-SOLICITATION. During the Noncompetition Term, if
applicable, the Employee shall not interfere with the Company's relationship
with, employ or endeavor to entice away from the Company, any person who, on the
date of the termination of the Employment Term, was an employee or customer of
the Company or otherwise had a material business relationship with the Company.
(d) REMEDIES. The Employee agrees that any breach of the terms of
this Section 13 would result in irreparable injury and damage to the Company for
which the Company would have no adequate remedy at law; the Employee therefore
also agrees that in the event of said breach or any threat of breach, the
Company shall be entitled to an immediate injunction and restraining order to
prevent such breach and/or threatened breach and/or continued breach by the
Employee and/or any and all entities acting for and/or with the Employee,
without having to prove damages, in addition to any other remedies to which the
Company may be entitled at law or in equity. The terms of this paragraph shall
not prevent the Company from pursuing any other available remedies for any
breach or threatened breach hereof, including but not limited to the recovery of
damages from the Employee. The Employee acknowledges that the Company would not
have entered into this Agreement had the Employee not agreed to the provisions
of this Section 13. The Employee and the Company agree that the provisions of
the covenant not to compete set forth in this Section 13 are reasonable. Should
a court or arbitrator determine, however, that any provision of the covenant not
to compete is unreasonable or unenforceable, either in period of time,
geographical area, or otherwise, the parties hereto agree that the covenant
should be interpreted and enforced to the maximum extent possible in accordance
with law.
The provisions of this Section 13 shall survive any termination
of the Employment Term, and the existence of any claim or cause of action by the
Employee against the Company, whether predicated on this Agreement or otherwise,
shall not constitute a defense to the enforcement by the Company of the
covenants and agreements of this Section 13.
14. NON-WAIVER OF RIGHTS. The failure to enforce at any time the
provisions of this Agreement or to require at any time performance by the other
party of any of the provisions hereof shall in no way be construed to be a
waiver of such provisions or to affect either the validity of this Agreement or
any part hereof, or the right of either party to enforce each and every
provision in accordance with its terms. No waiver by either party hereto of any
breach by the other party hereto of any provision of this Agreement to be
performed by such other party shall be deemed a waiver of similar or dissimilar
provisions at that time or at any prior or subsequent time.
15. NOTICES. Every notice relating to this Agreement shall be in
writing and shall be given by personal delivery or by registered or certified
mail, postage prepaid, return receipt requested; to:
If to the Company: Orion Power Holdings, Inc.
7 E. Redwood Street, 10th Floor
Baltimore, MD 21202
Telephone: (410) 230-3507
Attention: W. Thaddeus Miller
Louis Melton
If to the Employee: Michael Gluckman
c/o Orion Power Holdings, Inc.
7 E. Redwood Street, 10th Floor
Baltimore, MD 21202
Telephone: (410) 230-3500
Either of the parties hereto may change their address for purposes of
notice hereunder by giving notice in writing to such other party pursuant to
this Section 15.
16. INDEMNIFICATION. During the Employment Term and thereafter, the
Company shall indemnify the Employee to the fullest extent permitted by law
against any judgments, fines, amounts paid in settlement and reasonable expenses
(including attorneys' fees) in connection with any claim, action or proceeding
(whether civil or criminal) against the Employee as a result of the Employee
serving as an officer of the Company or in any capacity at the request of the
Company, in or with regard to any other entity, employee benefit plan or
enterprise (other than arising out of the Employee's act of willful misconduct,
gross negligence, misappropriation of funds, fraud or breach of this Agreement).
This indemnification shall be in addition to, and not in lieu of, any other
indemnification the Employee shall be entitled to pursuant to the Company's
Certificate of Incorporation or By-laws or otherwise. Following the Employee's
termination of employment, the Company shall continue to cover the Employee
under the Company's directors and officer's insurance, if any, for the period
during which the Employee may be subject to potential liability for any claim,
action or proceeding (whether civil or criminal) as a result of his service as
an officer of the Company or in any capacity at the request of the Company, in
or with regard to any other entity, employee benefit plan or enterprise on the
same terms such coverage was provided during the Employment Term, at the highest
level then maintained for any then current or former officer.
18. BINDING EFFECT/ASSIGNMENT. This Agreement shall inure to the
benefit of and be binding upon the parties hereto and their respective heirs,
executors, personal representatives, estates, successors (including, without
limitation, by way of merger) and assigns. Notwithstanding the provisions of the
immediately preceding sentence, the Employee shall not assign all or any portion
of this Agreement without the prior written consent of the Company.
19. ENTIRE AGREEMENT. This Agreement (together with the Exhibits
hereto and the other agreements referred to herein) sets forth the entire
understanding of the parties hereto with respect to the subject matter hereof
and supersedes all prior agreements, written or oral, between them as to such
subject matter.
20. SEVERABILITY. If any provision of this Agreement, or any
application thereof to any circumstances, is invalid, in whole or in part, such
provision or application shall to that extent be severable and shall not affect
other provisions or applications of this Agreement.
21. GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the internal laws of the State of Delaware, without reference
to the principles of conflict of laws. All actions and proceedings arising out
of or relating to this Agreement shall be heard and determined in any Maryland
state or federal court sitting in The City of Baltimore, and the parties hereto
hereby consent to the jurisdiction of such courts in any such action or
proceeding; PROVIDED, HOWEVER, that neither party shall commence any such action
or proceeding unless prior thereto the parties have in good faith attempted to
resolve the claim, dispute or cause of action which is the subject of such
action or proceeding through mediation by an independent third party.
22. MODIFICATIONS. Neither this Agreement nor any provision hereof may
be modified, altered, amended or waived except by an instrument in writing duly
signed by the party to be charged.
23. GENDER, TENSE AND HEADINGS. Whenever any words are used herein in
the masculine gender, they shall be construed as though they were also used in
the feminine gender in all cases where they would so apply. Whenever any words
used herein are in the singular form, they shall be construed as though they
were also used in the plural form in all cases where they would so apply.
The headings contained herein are solely for the purposes of
reference, are not part of this Agreement and shall not in any way affect the
meaning or interpretation of this Agreement.
24. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original but all of which
together shall constitute one and the same instrument.
25. REGISTRATION RIGHTS. The Employee shall have the right, subject to
cut-back arrangements in favor of other non-management stockholders, to include
in any registration statement filed by the Company to register shares of its
Common Stock (whether for its own account or for the account of other
stockholders), shares of Common Stock issued or issuable upon the exercise of
any Options awarded to the Employee and to have the Company pay all expenses
incurred (other than underwriting discounts and commissions) in connection with
the registration of such shares of Common Stock; PROVIDED, that the managing
underwriter in connection with such registration shall have reasonably
determined, in its sole discretion, that such inclusion shall not adversely
affect, in any manner, the public offering of such shares.
IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed by authority of its Board of Directors, and the Employee has hereunto
set his hand, on the day and year first above written.
ORION POWER HOLDINGS, INC.
By:
---------------------------------
Name: Jack Fusco
Title: President and CEO
---------------------------------
Michael Gluckman
EXHIBIT A
to
EMPLOYMENT AGREEMENT
by and between
ORION POWER HOLDINGS, INC.
and
MICHAEL GLUCKMAN
None.