Ex 10.54
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is entered into by and between
William R. Stewart ("Stewart") and Chugach Electric Association, Inc., an Alaska
electrical cooperative association headquartered in Anchorage, Alaska ("Chugach"
or "Employer"), retroactive as of July 1, 2006.
WITNESSETH:
WHEREAS, Chugach is engaged in the business of production, transmission
and distribution of electricity in Alaska;
WHEREAS, Stewart has skills and experience in electric utility management
generally and with the business and technology associated with the production,
transmission and distribution of electricity; and
WHEREAS, Chugach desires to obtain Stewart's services as the Chief
Executive Officer of its business, and Stewart desires to be employed in that
position by Chugach;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein set forth, the parties hereto agree as follows:
1. Employment. Chugach hereby employs Stewart as its Chief Executive
Officer, and Stewart hereby accepts such employment upon the terms and
conditions hereinafter set forth.
2. Duties.
a. Stewart shall serve as Chugach's Chief Executive Officer and
shall perform his services as such within the framework of Chugach's Bylaws,
policies, procedures and goals as Chugach's Board of Directors shall from time
to time determine, including but not limited to the following:
(i) Board Policy 106, Delegations of Authority from the Board
of Directors to the Chief Executive Officer, Appendix A hereto;
(ii) Board Policy 107, Board of Directors - Chief Executive
Officer Relationship, Appendix B hereto; and
(iii) Board Policy 118, Delegation of Certain of the
Secretary's and Treasurer's Duties to the Chief Executive Officer, Appendix C
hereto.
In such capacity, Stewart (i) shall exercise general supervisory responsibility
and management authority over Chugach and all of its controlled affiliates and
(ii) shall
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perform such other duties commensurate with his position as may be assigned to
him from time to time by the Chugach Board of Directors.
b. Stewart shall devote substantially all his business time,
attention and energies to the performance of his duties and functions under this
Agreement and shall not during the term of his employment hereunder be engaged
in any other substantial business activity for gain, profit or other pecuniary
advantage. Stewart shall faithfully, loyally and diligently perform his assigned
duties and functions and shall not engage in any activities whatsoever that
conflict with his obligations to Chugach during the term of his employment
hereunder. Notwithstanding the foregoing, nothing in the foregoing shall be
construed so as to limit or prohibit personal investments by Stewart; provided
that such investments shall not amount to a controlling interest in any entity
(other than trusts, limited partnerships or other entities adopted by Stewart
for estate planning purposes). Stewart also agrees that he will not participate
in any political activity that will or may reflect adversely upon Chugach
without obtaining the prior consent of Chugach's Board of Directors.
c. Chugach shall furnish Stewart with an office and other facilities
at Chugach's headquarters location and services that are suitable to his
position and adequate for the performance of his duties and functions hereunder.
3. Term of the Agreement. The term of this Agreement shall be for a period
of three (3) years commencing retroactively on July 1, 2006. This Agreement may
be extended by mutual written agreement of the parties reached on or before July
1, 2008, for a minimum of a one (1) year term, and thereafter for additional
terms of one or more years on mutual written agreement reached not less than
twelve (12) months prior to expiration of the then remaining term.
Notwithstanding the foregoing, this Agreement will automatically be extended for
successive one-year terms if the Board of Directors does not take formal action
otherwise on or before July 1, 2008, and annually thereafter, or unless
terminated as provided in Section 10 of this Agreement.
4. Compensation. Chugach shall pay to Stewart, in consideration of and as
compensation for the services agreed to be rendered by Stewart hereunder, the
following:
a. Salary. During the first year of this Agreement (July 1, 2006 -
June 30, 2007), Chugach shall pay to Stewart an annual salary of Two Hundred
Twenty Thousand Dollars ($220,000 US) (the "Base Salary"), payable in regular
installments on Chugach's normal paydays, less withholdings required by law and
as authorized by Stewart. On each July 1 anniversary date thereafter, the Base
Salary shall be adjusted based upon the percentage increase, if any, in the then
most current semi-annual Anchorage CPI-U index published by the U.S. Bureau of
Labor Statistics. The Base Salary shall not be decreased due to any reduction in
the CPI-U index.
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b. Discretionary Performance-Based Bonus Program. The Board of
Directors may, in its sole discretion, establish annual or other
performance-based objectives for Stewart and assign fixed dollar amount or
percentage of Base Salary bonuses for the successful achievement of those
objectives. The stated objective(s) will be set forth in Appendix D hereto, to
be updated from time to time as the Board sees fit. For each objective met,
Stewart will be awarded the bonus associated with that objective, said
payment(s) to be made within thirty (30) days of the Board's determination, less
withholdings required by law or as authorized by Stewart. The parties
acknowledge that such bonus payments to Stewart, if any, are not considered
compensation under any of retirement plans offered by Chugach and therefore will
not be considered in determining Stewart's retirement benefits.
c. Use of Company Vehicles. During the Employment Term, Stewart
shall be permitted to use Chugach vehicles on company business on a de minimus
basis. Stewart shall not be entitled to a company vehicle for personal use.
5. Chugach-Provided Benefits. During the term of this Agreement and if
available then, Stewart shall be entitled to participate in all group health,
pension, 401(k), deferred compensation plans and other benefit plans maintained
by Chugach and provided to its salaried administrative personnel, on the same
terms as apply to participation therein by such personnel generally (except as
otherwise provided herein). Further, during the term of this Agreement, Stewart
shall be entitled to participate in all fringe benefit programs and shall
receive all perquisites if and to the extent that Chugach's Board of Directors
establishes and makes such benefits and perquisites available to its salaried
administrative personnel generally, including, but not limited to, Employer-paid
long-term disability insurance and life insurance coverage.
6. Holidays, Sick Leave and Annual Leave. Stewart shall be entitled to
such holidays, sick leave and annual leave as are provided to Chugach's salaried
administrative personnel generally.
7. Expenses. During the term of this Agreement, Chugach shall reimburse
Stewart for all reasonable travel, entertainment and other business expenses
incurred or paid by Stewart in performing his duties and functions hereunder,
subject to Stewart's accounting for and reporting such expenses pursuant to
applicable Chugach policies.
8. Non-Competition. During the term of this Agreement, during any
extension thereof, and for a period of six (6) months after termination of this
Agreement, Stewart shall not enter into or participate in any business
competitive to the business carried on by Chugach in Southcentral Alaska or at
such additional locations, if any, outside Southcentral Alaska at which Chugach
conducts business. As used herein, the term "business competitive to the
business carried on by
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Chugach" means any business that involves the production, transmission or
distribution of electricity, and the words "Southcentral Alaska" mean a business
conducted in whole or in part within the boundaries of the Municipality of
Anchorage, the Kenai Peninsula Borough, or the Matanuska-Susitna Borough. The
provisions of this paragraph 8 shall survive the expiration and/or termination
of this Agreement. If a court of competent jurisdiction or arbitrator, as the
case may be, should declare any or all of this provision unenforceable because
of any unreasonable restriction of duration and/or geographical area, then such
court or arbitrator shall have the express authority to reform this provision to
provide for reasonable restrictions and/or to grant Chugach such other relief,
at law or in equity, as is reasonably necessary to protect its interests.
9. Confidential Information. During the term of this Agreement and for so
long thereafter as the information remains confidential, Stewart will not use
for his own advantage or disclose to any unauthorized person any confidential
information relating to the business operations or properties of Chugach and any
affiliate of Chugach. Upon the expiration or termination of this Agreement, upon
Chugach's request, Stewart will surrender and deliver to Chugach all documents
and information of every kind relating to or connected with Chugach and its
affiliates. As used herein "confidential information" means all information,
whether written or oral, tangible or intangible, of a private, secret,
proprietary or confidential nature, of or concerning Chugach and its business
and operations, including without limitation, any trade-secrets or know-how,
computer software programs in both source code and object code, information
regarding any product or service, development, technology, technique, process or
methodology, any sales, promotional or marketing plans, programs, techniques,
practices or strategies, any expansion or acquisition plans, any operational and
management guidelines, any cost, pricing or other financial data or projections,
and any other information which is to be treated as confidential because of any
duty of confidentiality owed by Chugach to any third party or any other
information that Chugach shall, in the ordinary course of its business, possess
or use and not release externally without restriction on use or disclosure. The
foregoing confidential information provision shall not apply to information
which: (i) is or becomes publicly known through no wrongful act of Stewart, (ii)
is rightfully received from any third party without restriction and without
breach by Stewart of this Agreement; or (iii) is independently developed by
Stewart after the term of his employment hereunder or is independently developed
by a competitor of Chugach at any time. The provisions of this paragraph 9 shall
survive the expiration and/or termination of this Agreement.
10. Termination.
a. Termination for Cause. Chugach may terminate Stewart's employment
for "cause" immediately upon written notice to Stewart, provided, however, that
Stewart has been given ten (10) days written notice of cause for termination and
has failed to, or is unable to, cure such cause within that time. Such
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notice shall specify in reasonable detail the acts or omissions that constitute
cause for termination. For purposes of this Agreement, "cause" means a
business-related reason that is not arbitrary, capricious or illegal and which
is based on facts (i) supported by substantial evidence and (ii) reasonably
believed by the Board of Directors to be true. Examples of "cause" for
termination of employment are provided in Chugach Operating Policy 013 dated
September 19, 2001, and are incorporated herein by reference to the extent they
are consistent with this Agreement. In the event of the involuntary termination
of his employment for cause, Stewart shall not be entitled to receive any
compensation hereunder other than his Salary and employee benefits and leave as
accrued through the effective date of such termination. Stewart's obligations
under Paragraphs 8 and 9 shall continue under the terms and conditions of this
Agreement.
b. Termination Without Cause. Chugach may terminate Stewart's
employment without cause at any time during the term of this Agreement or any
extension thereof, provided however, that Chugach shall continue to pay Stewart
his Base Salary and shall provide him all benefits that he would have received
had his employment not been terminated then, said payments and benefits to
continue without interruption through the end of the then remaining term of this
Agreement.
c. Voluntary Termination. Stewart may voluntarily terminate his
employment under this Agreement at any time upon sixty (60) days' prior written
notice to Chugach's Board of Directors, whereupon Chugach's employment of
Stewart shall terminate at the end of the sixty (60) day notice period. In the
event of Stewart's voluntary termination of employment, he shall not be entitled
to receive any compensation hereunder other than his Salary and employee
benefits as accrued through the effective date of such termination. Stewart's
obligations under Paragraphs 8 and 9 shall continue under the terms and
conditions of this Agreement.
d. Disability. Chugach may terminate Stewart's employment after
having established Stewart's Disability, subject to applicable state and/or
federal law. For purposes of this Agreement, "Disability" means a physical or
mental disability which impairs Stewart's ability to substantially perform his
duties under this Agreement and which results in Stewart becoming eligible for
long-term disability benefits under Chugach's long-term disability plan (or, if
Chugach has no such plan in effect, which impairs Stewart's ability to
substantially perform his duties under this Agreement for a period of 180
consecutive days). Stewart shall be entitled to the compensation and benefits
provided for under this Agreement for (i) any period during the term of this
Agreement and prior to the establishment of Stewart's Disability during which
Stewart is unable to work due to a physical or mental disability, or (ii) any
period of Disability which is prior to Stewart's termination of employment
pursuant to this paragraph.
EMPLOYMENT AGREEMENT - 5
e. Death. This Agreement shall automatically terminate the day after
Stewart's death if it has not already terminated prior to that date.
f. Miscellaneous. In the event of any termination or attempted
termination hereof: (i) if multiple events, occurrences or circumstances are
asserted as bases for such termination or attempted termination, the event,
occurrence or circumstance that is earliest in time, and any termination or
attempted termination found to be proper hereunder based thereon, shall take
precedence over the others; (ii) no termination of this Agreement shall relieve
or release either party from liability hereunder based on any breach of the
terms hereof by such party occurring prior to the termination date; and (iii)
the terms of this Agreement relevant to performance or satisfaction of any
obligation hereunder expressly remaining to be performed or satisfied in whole
or in part at the termination date shall continue in force until such full
performance or satisfaction has been accomplished and otherwise neither party
hereto shall have any other or further remaining obligations to the other party
hereunder.
g. No Set-off; No Duty of Mitigation. There shall be no right of
setoff or counterclaim, in respect of any actual or alleged claim, debt or
obligation, against any payments or benefits required to be made or provided to
Stewart hereunder, including, without limitation, pursuant to subparagraph
10(b). In the event of any termination of Stewart's employment under
subparagraph 10(b), Stewart shall be under no obligation to seek other
employment and shall be entitled to all payments or benefits required to be made
or provided to Stewart hereunder, without any duty of mitigation of damages and
regardless of any other employment obtained by Stewart.
11. Injunctive Relief. It is agreed that the services of Stewart are
unique and that any breach or threatened breach by Stewart of any provision of
this Agreement cannot be remedied solely by damages. Accordingly, in the event
of a breach by Stewart of his obligations under this Agreement, Chugach shall be
entitled to seek and obtain interim restraints and permanent injunctive relief,
restraining Stewart and any business, firm, partnership, individual, corporation
or entity participating in such breach or attempted breach. Nothing herein,
however, shall be construed as prohibiting either party from seeking injunctive
relief to require resolution of disputes or controversies arising out of or
relating to this Agreement to be resolved pursuant to paragraph 12 below.
12. Arbitration. Any dispute or controversy arising out of or relating to
this Agreement or any claimed breach hereof shall be resolved, at the request of
either party, by a private arbitration proceeding. The request for arbitration
shall be made in writing no later than thirty (30) days after the alleged act or
omission on which it is based. The arbitration proceeding shall be conducted
pursuant to the Alaska Revised Uniform Arbitration Act, AS 09.43.300 - 09.43.595
(the "Act") and the most current version of the employment arbitration rules
published by the dispute
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resolution organization whose services are used by these parties (the
"Arbitration Rules"), each of which is incorporated herein by this reference to
the extent that the Act and the Arbitration Rules are consistent with this
Agreement. The arbitrator shall be an impartial arbitrator qualified to serve in
accordance with the Arbitration Rules. The arbitrator shall be selected by
mutual agreement of the parties. If the parties are unable to agree to a
mutually acceptable arbitrator within twenty-one (21) days of the request for
arbitration, Chugach shall select an impartial dispute resolution organization
to provide the parties a list of seven (7) arbitrators. After a coin toss to
determine who makes the first strike, the parties shall strike names from the
list alternately until the name of one arbitrator remains. That arbitrator shall
be deemed mutually acceptable to both parties unless the arbitrator is
unavailable, in which case the last arbitrator whose name was struck shall be
deemed acceptable to the parties, and so on. The arbitration hearing shall be
held in Anchorage, Alaska, or in such other place as may be mutually agreed upon
by the parties, at a time and location determined by the arbitrator. Within
thirty (30) days of the close of the arbitration hearing, the arbitrator shall
hand down a written decision and award. The decision shall explain the basis for
the arbitrator's award. The arbitrator shall have authority to interpret and
enforce this Agreement, but shall not have authority to alter, amend or
supersede any provision of this Agreement. The decision and award shall be final
and binding on the parties, subject only to such appeal rights as are available
under the Act. Either party may seek entry of judgment upon such decision and
award in any court having jurisdiction over the parties. The expenses of the
arbitration proceeding shall be borne by Chugach. Each party shall pay for and
bear the cost of its own experts, witnesses and legal counsel in such
arbitration proceeding.
13. Indemnification.
a. Chugach shall indemnify Stewart (as a "protected person") to the
fullest extent permitted by AS 10.25.145 (the terms of which are incorporated
herein by this reference) against all costs, expenses, liabilities and losses
(including, without limitation, attorneys' fees, judgments, penalties and
amounts paid in settlement) reasonably incurred by Stewart in connection with
any action, suit or proceeding, whether civil, criminal, administrative or
investigative in which Stewart is made, or is threatened to be made, a party to
or a witness in such action, suit or proceeding by reason of the fact that he is
or was an officer or agent of Chugach or of any of Chugach's controlled
affiliates or is or was serving as an officer, trustee, agent or fiduciary of
any other entity at the request of Chugach (a "Proceeding").
b. Chugach shall advance to Stewart all reasonable costs and
expenses incurred by him in connection with a Proceeding within twenty (20) days
after receipt by Chugach of a written request for such advance, accompanied by
an itemized list of the actual or anticipated costs and expenses and Stewart's
written undertaking to repay to Chugach on demand the amount of such advance if
it shall ultimately be determined that Stewart is not entitled to be indemnified
against such
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costs and expenses. Stewart shall periodically account to Chugach for all such
costs and expenses incurred by Stewart in connection with his defense of the
Proceeding.
c. The indemnification provided to Stewart hereunder is in addition
to, and not in lieu of, any additional indemnification to which he may be
entitled pursuant to Chugach's Certificate of Incorporation or Bylaws, any
insurance maintained by Chugach from time to time providing coverage to Stewart
and other officers and directors of Chugach, or any separate written agreement
with Stewart. The provisions of this paragraph 13 shall survive any termination
of this Agreement.
14. Amendment and Modification. This Agreement contains the entire
agreement between the parties with respect to the subject matter hereof, and
supersedes any and all prior agreements, arrangements or understandings between
the parties hereto with respect to the subject matter hereof, whether written or
oral, including but not limited to the parties' Memorandum of Agreement in
Principle and the agreements under which Stewart served as Chugach's interim
Chief Executive Officer. Subject to applicable law and upon the consent of
Chugach's Board of Directors, this Agreement may be amended, modified and
supplemented by written agreement of Chugach and Stewart with respect to any of
the terms contained herein.
15. Waiver of Compliance. Any failure of either party to comply with any
obligation, covenant, agreement or condition on its part contained herein may be
expressly waived in writing by the other party, but such waiver or failure to
insist upon strict compliance shall not operate as a waiver of, or estoppel with
respect to, any subsequent or other failure. Whenever this Agreement requires or
permits consent by or on behalf of any party, such consent shall be given in
writing.
16. Notices. All notices, requests, demands and other communications
required or permitted hereunder shall be in writing and shall be deemed to have
been duly given if delivered by hand, sent by registered or certified U.S. Mail,
postage prepaid, commercial overnight courier service or transmitted by
facsimile and shall be deemed served or delivered to the addressee at the
address for such notice specified below when hand delivered, upon confirmation
of sending when sent by fax, on the day after being sent when sent by overnight
delivery or five (5) days after having been mailed, certified or registered,
with postage prepaid:
If to Chugach: If to Stewart:
Chugach Electric Association, Inc. William R. Stewart
P.O. Box 196300 3200 Discovery Bay Drive
Anchorage, AK 99519-6300 Anchorage, AK 99515
EMPLOYMENT AGREEMENT - 8
Facsimile: (907) 762-4688 Facsimile:
Attention: Chairman of Board of Directors
or, in the case of either such party, to such substitute address as such party
may designate from time to time for purposes of notices to be given to such
party hereunder, which substitute address shall be designated as such in a
written notice given to the other party addressed as aforesaid.
17. Assignment. This Agreement shall inure to the benefit of Stewart and
Chugach and be binding upon the successors and general assigns of Employer. This
Agreement shall not be assignable by either party except to the extent set forth
in paragraph 20.
18. Enforceability. In the event it is determined that this Agreement is
unenforceable in any respect, it is the mutual intent of the parties that it be
construed to apply and be enforceable to the maximum extent permitted by
applicable law.
19. Applicable Law. This Agreement shall be construed and enforced in
accordance with the laws applicable to contracts executed, delivered and fully
to be performed in the State of Alaska.
20. Beneficiaries: Executive's Representative. Stewart shall be entitled
to select (and to change, from time to time, except to the extent prohibited
under any applicable law) a beneficiary or beneficiaries to receive any
payments, distributions or benefits to be made or distributed hereunder upon or
following Stewart's death. Any such designation shall be made by written notice
to Chugach. In the event of Stewart's death or of a judicial determination of
Stewart's incompetence, references in this Agreement to Stewart shall be deemed,
as appropriate, to refer to his designated beneficiary, to his estate or to his
executor or personal representative ("Stewart's Representative") solely for the
purpose of providing a clear mechanism for the exercise of Stewart's rights
hereunder in the case of Stewart's death or disability.
//
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EMPLOYMENT AGREEMENT - 9
IN WITNESS WHEREOF, the parties have executed this Agreement to be
effective on and as of the day and year first above written.
CHUGACH ELECTRIC ASSOCIATION, INC.
By: /s/ JEFF LIPSCOMB
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Name: JEFF LIPSCOMB
Title: CHAIRMAN OF THE BOARD
WILLIAM R. STEWART
/s/ WILLIAM R. STEWART
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EMPLOYMENT AGREEMENT - 10