Exhibit 10(xxxi)
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (the "Agreement") is made as of
February 6, 1995, between DOMINION RESOURCES, INC. (the "Company") and
TYNDALL L. BAUCOM (the "Executive").
RECITALS:
The Board of Directors of Dominion Resources, Inc. (the "Board of
Directors") recognizes that outstanding management of the Company is
essential to advancing the best interests of the Company, its shareholders
and its subsidiaries. The Board of Directors believes that this objective
may be achieved by giving key management employees assurances of financial
security for a period of time, so that they will not be distracted by
personal risks and will continue to devote their full time and best efforts
to the performance of their duties.
To accomplish this purpose, the Company and the Executive entered
into an employment agreement as of August 12, 1994 (the "August, 1994
Employment Agreement"). The Executive is now serving as President of the
Company and has assumed substantial additional responsibilities. The
Organization and Compensation Committee of the Board of Directors (the
"Committee") has recommended, and the Board of Directors has approved,
entering into a new employment agreement with the Executive, which shall
replace the Executive's August, 1994 Employment Agreement. The Company
acknowledges that the Executive's contributions to the past and future
growth and success of the Company have been and will continue to be
substantial. The Company and the Executive are entering into this
Agreement to induce the Executive to remain an employee of the Company and
to continue to devote his full energy to the Company's affairs. The
Executive has agreed to continue to be employed by the Company under the
terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the foregoing and the mutual
undertakings contained in this Agreement, the parties agree as follows:
1. Employment. The Company will employ the Executive, and the
Executive will continue in the employment of the Company, as an executive
of the Company, for the period beginning August 12, 1994 and ending March
1, 1997 (the "Term of this Agreement"), according to the terms of this
Agreement.
2. Duties. The Company and the Executive agree that, during
the Term of this Agreement, the Executive will serve in a senior management
position with the Company. The Executive (i) will devote his knowledge,
skill and best efforts on a full-time basis to performing his duties and
obligations to the Company (with the exception of absences on account of
illness or vacation in accordance with the Company's policies and civic and
charitable commitments not involving a conflict with the Company's
business), and (ii) will comply with the directions and orders of the Board
of Directors and Chief Executive Officer of the Company with respect to the
performance of his duties.
3. Effect on Other Agreements. This Agreement sets forth the
entire understanding of the parties with respect to the Executive's
employment with the Company. The August, 1994 Employment Agreement and the
Employment Continuity Agreement between the Executive and the Company will
terminate as of the date on which this Agreement is executed. This
Agreement supersedes and replaces the Executive's August, 1994 Employment
Agreement, the Executive's Employment Continuity Agreement, and any other
employment agreements between the Executive and the Company (collectively,
the "Prior Agreements"). The term "employment agreement" as used in the
preceding sentence does not include any retirement, incentive or benefit
plan or program in which the Executive participates or any credited service
agreement under which the Executive receives years of service credit for
retirement plan purposes. The Executive and the Company agree that,
effective as of the execution of this Agreement, the Executive's Prior
Agreements are null and void.
4. Affiliates. Employment by an Affiliate of the Company or a
successor to the Company will be considered employment by the Company for
purposes of this Agreement, and termination of employment with the Company
means termination of employment with the Company and all its Affiliates and
successors. The term "Company" as used in this Agreement will be deemed to
include Affiliates and successors. For purposes of this Agreement, the
term "Affiliate" means the subsidiaries of Dominion Resources, Inc. and
other entities under common control with Dominion Resources, Inc.
5. Compensation and Benefits.
(a) During the Term of this Agreement, while the Executive
is employed by the Company, the Company will pay to the Executive the
following salary and incentive awards for services rendered to the Company:
(i) The Company will pay to the Executive an annual
salary in an amount not less than the base salary in effect
for the Executive as of the beginning of the Term of this
Agreement. The Board of Directors will evaluate the
Executive's performance at least annually and will consider
annual increases in the Executive's salary based on the
Executive's performance.
(ii) The Executive will be entitled to receive
incentive awards if and to the extent that the Board of
Directors determines that the Executive's performance merits
payment of an award. The Board of Directors will make its
determination consistent with the methodology used by the
Company for compensating its senior management employees.
If the Executive is employed by an Affiliate or a successor (as described
in Section 4), the term "Board of Directors" as used in this Section 5(a)
and in Section 7(a)(iii) means the Board of Directors of the Executive's
employer.
(b) During the Term of this Agreement, while the Executive
is employed by the Company, the Executive will be eligible to participate
in a similar manner as other senior executives of the Company in retirement
plans, cash and stock incentive plans, fringe benefit plans and other
employee benefit plans and programs provided by the Company for its senior
management employees from time to time.
6. Benefits Upon Completion of the Term of this Agreement. If
the Executive continues in the employment of the Company through March 1,
1997, the Executive will be entitled to receive the following additional
benefits:
(a) The Executive will receive from the Company a lump sum
completion bonus equal to 25% of the base salary and annual cash
incentive awards paid to the Executive during the Term of this
Agreement (including the cash incentive award for the 1996 fiscal
year, even if payment is postponed beyond March 1, 1997). Under
this provision, the Executive's completion bonus payable with
respect to incentive awards will be based on the Executive's
1994, 1995 and 1996 fiscal year cash incentive awards, which are
to be paid in February, 1995, 1996 and 1997, respectively.
Salary and incentive awards that the Executive has elected to
defer will be taken into account for purposes of this Agreement
without regard to the deferral. Payment will be made within 30
days after March 1, 1997.
(b) The Executive's retirement benefits under the Company's
Retirement Plan and Benefit Restoration Plan will be computed
based on the greater of (i) the Executive's annual salary during
his final year of employment or (ii) the Executive's final five-
year average compensation, as described in the Company's
Retirement Plan. Any supplemental benefit to be provided under
this subsection (b) will be provided as a supplemental benefit
under this Agreement and will not be provided directly from the
Retirement Plan.
(c) The Executive's retirement and supplemental retirement
benefits under the Company's plans will be computed as if the
Executive had attained age 60 and completed at least 30 years of
service.
7. Termination of Employment.
(a) If the Company terminates the Executive's employment,
other than for Cause (as defined in Section 9 below), during the Term of
this Agreement, the Company will pay the Executive a lump sum payment equal
to the present value of the Executive's annual base salary and annual cash
incentive awards (computed as described below) for the balance of the Term
of this Agreement. The lump sum payment will be computed as follows:
(i) For purposes of this calculation, the Executive's
annual base salary for the balance of the Term of the
Agreement will be calculated at the highest annual base
salary rate in effect for the Executive during the three-
year period preceding his termination of employment. For
purposes of this calculation, the Executive's annual cash
incentive awards for the balance of the Term of the
Agreement will be calculated at a rate equal to the highest
annual cash incentive award paid to the Executive during the
three-year period preceding his termination of employment.
Salary and incentive awards that the Executive elected to
defer will be taken into account for purposes of this
Agreement without regard to the deferral.
(ii) The salary and incentive award for any partial
year in the Term of this Agreement will be a pro-rated
portion of the annual amount.
(iii) If the Executive has not yet received an annual
cash incentive award for the year in which his employment
terminates, the lump sum payment will be increased to
include a pro-rated award for the portion of the year
preceding the Executive's termination of employment. If the
Executive has not yet received payment of his annual cash
incentive award for the year preceding his termination of
employment, the lump sum payment will be increased to
include an award for the year preceding the Executive's
termination of employment. The incentive award for the year
or portion of the year preceding the Executive's termination
of employment will be determined according to clause (i)
above, unless the Board of Directors made a good faith final
determination of the amount of the applicable incentive
award pursuant to Section 5(a)(ii) before the Executive's
termination of employment. If the Board of Directors made
such a determination, the applicable incentive award will be
computed according to the Board of Directors' determination.
(iv) Present value will be computed by the Company as
of the date of the Executive's termination of employment,
based on a discount rate equal to the applicable Federal
short-term rate in effect on the date as of which the
present value is determined, as determined under Section
1274(d) of the Code, compounded monthly.
(v) The lump sum payment will be paid within 30 days
after the Executive's termination of employment.
(b) If the Company terminates the Executive's employment,
other than for Cause, during the Term of this Agreement, the Executive will
be entitled to receive the following additional benefits determined as of
the date of his termination of employment:
(i) The Executive will receive a lump sum payment
equal to the present value of the completion bonus described
in Section 6(a) that would be payable to the Executive if he
remained an employee through the Term of this Agreement.
For purposes of this calculation, the Executive's base
salary for the balance of the Term of this Agreement will be
calculated at a rate equal to the highest annual base salary
paid to the Executive during the three-year period preceding
his termination of employment. For purposes of this
calculation, the Executive's annual cash incentive awards
that would be paid during the balance of the Term of this
Agreement will be calculated at a rate equal to the highest
annual cash incentive award paid to the Executive during the
three-year period preceding his termination of employment;
provided that if the Executive has not yet received payment
of his annual cash incentive award for the year preceding
his termination of employment, the award for that year will
be determined as described in the last two sentences of
subsection (a)(iii) above. Payment will be made within 30
days after the Executive's termination of employment.
Present value will be computed as of the date of the
Executive's termination of employment, based on the interest
rate described in subsection (a).
(ii) The Executive will receive the enhanced retirement
benefits and age and service credit described in Sections
6(b) and (c) above as of the date of his termination of
employment.
(iii) Any outstanding restricted stock that would become
vested (that is, transferable and nonforfeitable) if the
Executive remained an employee through the Term of this
Agreement will become vested as of the date of the
Executive's termination of employment (or as of the date
described in the next sentence, if applicable). In
addition, if the Company has agreed to award the Executive
restricted stock at the end of a performance period, subject
to the Company's achievement of performance goals, and the
date as of which the restricted stock is to become vested
falls within the Term of this Agreement, the stock will be
awarded and become vested at the end of the performance
period if and to the extent that the performance goals are
met. The Executive must satisfy the tax withholding
requirements described in Section 11 with respect to the
restricted stock.
(iv) The Executive will be credited with age and
service credit through the end of the Term of this Agreement
for purposes of computing benefits under the Company's
pension, medical and other benefit plans, and the Company
will continue the Executive's coverage under the Company's
benefit plans as if the Executive remained employed through
the end of the Term of this Agreement. Notwithstanding the
foregoing, if the Company determines that giving such age
and service credit or continued coverage could adversely
affect the tax qualification or tax treatment of a benefit
plan, or otherwise have adverse legal ramifications, the
Company may pay the Executive a lump sum cash amount that
reasonably approximates the after-tax value to the Executive
of such age and service credit and continued coverage
through the end of the Term of this Agreement, in lieu of
giving such credit and continued coverage.
(c) If the Executive voluntarily terminates employment with
the Company during the Term of this Agreement under circumstances described
in this subsection (c), the Executive will be entitled to receive the
benefits described in subsections (a) and (b) above as if the Company had
terminated the Executive's employment other than for Cause. Subject to the
provisions of this subsection (c), these benefits will be provided if the
Executive voluntarily terminates employment after (i) the Company reduces
the Executive's base salary, (ii) the Executive is not in good faith
considered for incentive awards as described in Section 5(a)(ii), (iii) the
Company fails to provide benefits as required by Section 5(b), (iv) the
Company relocates the Executive's place of employment to a location further
than 30 miles from Richmond, Virginia, (v) the Company demotes the
Executive to a position that is not a senior management position (other
than on account of the Executive's disability, as defined in Section 8
below) or (vi) the Company restructures the Executive's position such that
the Chief Executive Officer of Virginia Electric and Power Company no
longer reports to the Executive, thereby rendering the Executive's current
position unnecessary, and does not offer the Executive another senior
management position. For this purpose, a "senior management position"
means the position of Chief Executive Officer, Chief Operating Officer or
President of Dominion Resources, Inc. ("DRI"), the position of President of
a subsidiary of DRI, or a position that reports directly to the Chief
Executive Officer or Chief Operating Officer of DRI or to the President of
a DRI subsidiary. In order for this subsection (c) to be effective: (1)
the Executive must give written notice to the Company indicating that the
Executive intends to terminate employment under this subsection (c), (2)
the Executive's voluntary termination under this subsection must occur
within 60 days after the Executive knows or reasonably should know of an
event described in clause (i), (ii), (iii), (iv), (v) or (vi) above, or
within 60 days after the last in a series of such events, and (3) the
Company must have failed to remedy the event described in clause (i), (ii),
(iii), (iv), (v) or (vi), as the case may be, within 30 days after
receiving the Executive's written notice. If the Company remedies the
event described in clause (i), (ii), (iii), (iv), (v) or (vi), as the case
may be, within 30 days after receiving the Executive's written notice, the
Executive may not terminate employment under this subsection (c) on account
of the event specified in the Executive's notice.
(d) The amounts under this Agreement will be paid in lieu
of severance benefits under any severance plan or program maintained by the
Company. The amounts payable under this Agreement will not be reduced by
any amounts earned by the Executive from a subsequent employer or
otherwise. If the Executive's employment is terminated by the Company for
Cause or if the Executive voluntarily terminates employment for a reason
not described in subsection (c) above or Section 8 below, this Agreement
will immediately terminate without liability on the part of the Company.
8. Disability or Death. If the Executive becomes disabled (as
defined below) during the Term of this Agreement while he is employed by
the Company, the Executive shall be entitled to receive the benefits
described in Section 7(b)(i), (ii) and (iii) of this Agreement as of the
date on which he is determined by the Company to be disabled. If the
Executive dies during the Term of this Agreement while he is employed by
the Company, the benefits described in Section 7(b)(i), (ii) and (iii) will
be provided to the personal representative of the Executive's estate or to
the beneficiary designated under the terms of the applicable benefit plan,
in the case of a plan benefit. The foregoing benefits will be provided in
addition to any death, disability and other benefits provided under Company
benefit plans in which the Executive participates. Upon the Executive's
death or disability, the provisions of Sections 1, 2, 5, 6 and 7 (except as
provided above) of this Agreement will terminate. The term "disability"
means a condition, resulting from bodily injury or disease, that renders,
and for a six consecutive month period has rendered, the Executive unable
to perform substantially the duties pertaining to his employment with the
Company. A return to work of less than 14 consecutive days will not be
considered an interruption in the Executive's six consecutive months of
disability. Disability will be determined by the Company on the basis of
medical evidence satisfactory to the Company.
9. Cause. For purposes of this Agreement, the term "Cause"
means (i) fraud or material misappropriation with respect to the business
or assets of the Company, (ii) persistent refusal or wilful failure of the
Executive to perform substantially his duties and responsibilities to the
Company, which continues after the Executive receives notice of such
refusal or failure, (iii) conduct that constitutes disloyalty to the
Company, and that materially harms or has the potential to cause material
harm to the Company, (iv) conviction of a felony or crime involving moral
turpitude, or (v) the use of drugs or alcohol that interferes materially
with the Executive's performance of his duties.
10. Parachute Tax. If the Company determines that any amounts
payable under this Agreement would be subject to the excise tax imposed
under Code Section 4999 on "excess parachute payments", the Company will
compute the after-tax amount that would be payable to the Executive if the
total amounts that are payable to the Executive by the Company or a plan of
the Company and are considered "parachute payments" for purposes of Code
Section 280G ("Parachute Payments") were limited to the maximum amount that
may be paid to the Executive under Code Sections 280G and 4999 without
imposition of the excise tax (this after-tax amount is referred to as the
"Capped Amount"). The Company will also compute the after-tax amount that
would be payable to the Executive if the total Parachute Payments were
payable without regard to the Code Sections 280G and 4999 limit (this
after-tax amount is referred to as the "Uncapped Amount"). Notwithstanding
anything in this Agreement to the contrary, if the Capped Amount is greater
than or equal to 97% of the Uncapped Amount, then the total benefits and
other amounts that are considered Parachute Payments and are payable to the
Executive under this Agreement will be reduced to the largest amount that
will result in no portion of any such payment being subject to the excise
tax imposed by Code Section 4999. Tax counsel selected by mutual consent
of the Company and the Executive will determine the amount of any such
reduction in good faith. The determination will be made before the
payments are due and payable to the Executive, to the extent possible. The
Executive will determine which payments will be reduced, subject to
approval by the Company (which approval may not be unreasonably withheld).
The Executive will have no right to receive Parachute Payments under this
Agreement in excess of the reduced amount. The calculations under this
Section will be made in a manner consistent with the requirements of Code
Sections 280G and 4999, as in effect at the time the calculations are made.
11. Indemnification. The Company will pay all reasonable fees
and expenses, if any, (including, without limitation, legal fees and
expenses) that are incurred by the Executive to enforce this Agreement and
that result from a breach of this Agreement by the Company.
12. Payment of Compensation and Taxes. All amounts payable
under this Agreement (other than restricted stock, which will be paid
according to the terms of the Company's Long-Term Incentive Plan) will be
paid in cash, subject to required income and payroll tax withholdings. No
unrestricted stock will be issued to the Executive with respect to the
vesting of restricted stock until the Executive has paid to the Company the
amount that must be withheld for applicable income and employment taxes or
the Executive has made provisions satisfactory to the Company for the
payment of such taxes.
13. Administration. The Committee will be responsible for the
administration and interpretation of this Agreement on behalf of the
Company. If for any reason a benefit under this Agreement is not paid when
due, the Executive may file a written claim with the Committee. If the
claim is denied or no response is received within 90 days after the filing
(in which case the claim is deemed to be denied), the Executive may appeal
the denial to the Board of Directors within 60 days of the denial. The
Executive may request that the Board of Directors review the denial, the
Executive may review pertinent documents, and the Executive may submit
issues and comments in writing. A decision on appeal will be made within
60 days after the appeal is made, unless special circumstances require that
the Board of Directors extend the period for another 60 days. If the
Company defaults in an obligation under this Agreement, the Executive makes
a written claim pursuant to the claims procedure described above, and the
Company fails to remedy the default within the claims procedure period,
then all amounts payable to the Executive under this Agreement will become
immediately due and owing.
14. Assignment. The rights and obligations of the Company under
this Agreement will inure to the benefit of and will be binding upon the
successors and assigns of the Company. If the Company is consolidated or
merged with or into another corporation, or if another entity purchases all
or substantially all of the Company's assets, the surviving or acquiring
corporation will succeed to the Company's rights and obligations under this
Agreement. The Executive's rights under this Agreement may not be assigned
or transferred in whole or in part, except that the personal representative
of the Executive's estate will receive any amounts payable under this
Agreement after the death of the Executive.
15. Rights Under the Agreement. The right to receive benefits
under the Agreement will not give the Executive any proprietary interest in
the Company or any of its assets. Benefits under the Agreement will be
payable from the general assets of the Company, and there will be no
required funding of amounts that may become payable under the Agreement.
The Executive will for all purposes be a general creditor of the Company.
The interest of the Executive under the Agreement cannot be assigned,
anticipated, sold, encumbered or pledged and will not be subject to the
claims of the Executive's creditors.
16. Notice. For purposes of this Agreement, notices and all
other communications must be in writing and are effective when delivered or
mailed by United States registered mail, return receipt requested, postage
prepaid, addressed to the Executive or his personal representative at his
last known address. All notices to the Company must be directed to the
attention of the Chairman of the Committee. Such other addresses may be
used as either party may have furnished to the other in writing. Notices
of change of address are effective only upon receipt.
17. Miscellaneous. This instrument contains the entire
agreement of the parties. To the extent not governed by federal law, this
Agreement will be construed in accordance with the laws of the Commonwealth
of Virginia, without reference to its conflict of laws rules. No
provisions of this Agreement may be modified, waived or discharged unless
such waiver, modification or discharge is agreed to in writing and the
writing is signed by the Executive and the Company. A waiver of any breach
of or compliance with any provision or condition of this Agreement is not a
waiver of similar or dissimilar provisions or conditions. The invalidity
or unenforceability of any provision of this Agreement will not affect the
validity or enforceability of any other provision of this Agreement, which
will remain in full force and effect. This Agreement may be executed in
one or more counterparts, all of which will be considered one and the same
agreement.
WITNESS the following signatures.
DOMINION RESOURCES, INC.
By:__________________________
Thos. E. Capps,
Chief Executive Officer
Dated:___________________
_____________________________
Tyndall L. Baucom
Dated:___________________