EXHIBIT 10.1


 


EMPLOYMENT AGREEMENT


 


THIS AGREEMENT is effective as of August 17th, 2009 (“Effective
Date”) between Oglethorpe Power Corporation (An Electric Membership
Corporation) (“the Company”) and Charles W. Whitney (“Employee”).  The Company desires to employ Employee, and
Employee desires to accept employment with the Company, under the following
terms and conditions.  Therefore, in
consideration of Employee’s employment with the Company and the mutual promises
and conditions contained in this Agreement, the adequacy of which the parties
hereby acknowledge, Employee and the Company agree as follows:


 


1.     Term. 
Subject to the provisions for automatic renewal and termination as
provided below, the term of this Agreement shall commence on the Effective Date
and shall terminate at 12:01 a.m. on December 31st, 2010.


 


(a)   Automatic Renewal.  This Agreement
shall be automatically extended for one additional year, unless on or before November
30th, 2010 (for the initial term), or thirteen (13) months before the
expiration of any extended term, either Party provides to the other written
notice of its desire not to automatically renew this Agreement.


 


2.     Position and Duties.


 


(a)   Employee’s Title; Duties. 
Employee shall serve the Company in the position of Senior Vice
President, General Counsel.  Employee
shall perform all duties of this position, as assigned by the CEO, President,
or the Board of Directors of the Company (or other designee).


 


(b)   Conflict of Interest.  During
Employee’s employment, Employee shall not engage in any business activity
which, in the reasonable judgment of the CEO, conflicts with the duties of the
Employee under this Agreement, whether or not such activity is pursued for
gain, profit or other pecuniary advantage.


 


(c)   Participation in Other Boards or Similar Activities. 
Notwithstanding subsection 2(b), Employee may receive compensation for
participation on boards of directors or similar part-time associations,
provided that such participation does not interfere with the performance of Employee’s
employment obligations to the Company and that such participation has been
approved in advance by the Company’s CEO. 
The foregoing restrictions also shall not limit or prohibit Employee
from engaging in passive investment and community, charitable and social
activities not interfering with Employee’s performance and obligations under
this Agreement.


 


3.     Compensation and Related Matters.


 


(a)   Base Salary.  For all
services rendered by Employee during the term of this Agreement, the Company
shall pay Employee a minimum annual base salary of $300,000.00, payable in
equal semi-monthly installments, less applicable withholdings.  Employee’s base salary will be subject to
review and possible upward adjustment, subject to the sole discretion of the
President and CEO.


 

















 


(b)   Benefits.  During the
term of employment, Employee shall be entitled to receive and shall be allowed
to participate in the Company’s standard comprehensive benefits package on the
terms and conditions as provided in the policies and practices of the Company,
which may be modified from time-to-time in the sole discretion of the Company’s
Board of Directors.  Employee agrees that
no claim will arise against the Company by virtue of its Board of Directors’
exercise of its rights to modify the Company’s benefits package.


 


(c)   Bonus Eligibility; Performance Pay Program. 
Employee will be eligible for consideration for an annual bonus and
other incentive compensation plans generally available to other similarly
situated employees, including but not limited to the OPC Performance Pay
Program.  Such a bonus, if awarded, will
be an amount determined by the Company in its sole discretion.  Employee must be employed by the Company as
of December 31st of the award year in order to receive it; however, in the
event Employee is terminated not for Cause during the last quarter of an award
year, Employee will be eligible to receive a prorated bonus based on attainment
of the applicable goals during Employee’s employment.  Any prorated bonus will be paid in accordance
with the Company’s regular bonus payment schedule.


 


(d)   Business Expenses. Employee is authorized to incur reasonable and
documented business expenses incurred or paid by Employee on behalf of the
Company in performing Employee’s duties. 
Such reasonable expenses shall be promptly paid (or reimbursed as
applicable) by the Company upon presentation of expense statements in
accordance with the Company’s policy.


 


4.     Termination and Severance.


 


(a)   Termination for Cause.  The Company
may terminate Employee’s employment with the Company at any time if it believes
in good faith that it has Cause to do so. 
“Cause” shall be defined as: (i) Employee’s failure to perform Employee’s
duties which causes or is likely to cause material harm to the Company or
material interference with its operations; (ii) Employee’s substantial,
material failure to comply with the Company’s written directions or policies;
or (iii) Employee’s engaging in conduct that is unlawful or disreputable, to
the possible material detriment of the Company, its affiliates, its
predecessors or successors, or Employee’s own reputation; provided,
however, that with respect to (i) and (ii) above, Employee has been
given prompt notice of the failure and a reasonable opportunity to cure
it.  In the event of a termination for
Cause, or in the event of Employee’s death or disability (which shall be
defined as an inability to perform the essential functions of Employee’s
position, with or without accommodation, consistent with the Company’s obligations
under the Americans With Disabilities Act), all salary and other benefits
provided to Employee under this Agreement shall cease as of the date of
termination except for any portion of Salary that is accrued and owing and any
life and/or disability insurance proceeds that become payable by reason of
Employee’s death or disability.


 


(b)   Termination Not for Cause; Resignation with Good Reason. 
The Company may terminate Employee’s employment at any time upon two
weeks’ notice to the Employee.  In the
event the Company terminates Employee’s employment not for Cause or in the
event Employee resigns with Good Reason (as defined below), Employee shall
receive as severance pay the equivalent of one year of Employee’s then-current
base salary, less applicable 


 


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withholdings, payable in lump-sum form (referred to as
“Severance Pay”); provided, however, no payment shall be made to the Employee
under this Section prior to six (6) months after the Employee’s date of
termination to the extent that such payment would result in adverse tax
consequences under Section 409A of the Internal Revenue Code of 1986, as
amended.


 


i)             Definition of “Good
Reason”.  For purposes of this Section, “Good Reason”
shall be defined as: (a) a demotion or material reduction or alteration of
Employee’s job title or job duties and responsibilities inconsistent with
Employee’s current position; (b) a reduction of Employee’s base salary; or (c) a
relocation of Employee’s principal office by more than fifty (50) miles; and
further provided that Good Reason may be found under this subsection 4(b)(i) without
regard to whether there has been a sale or transfer of any or all of the
Company’s assets.


 


ii)            Medical Allowance and
Outplacement Services.  In addition to
the payment provided in subsection 4(b), the Company will provide (i) six (6) months’
outplacement services to be determined by the Company and (ii) an amount equal
to the Employee’s cost for medical and dental continuation coverage pursuant to
COBRA for six (6) months at the coverage type and level as is in effect as of
the date of the Employee’s termination of employment.


 


iii)           Release.  Employee will only receive Severance Pay and
the additional benefits provided in subsection 4(b)(ii) if Employee signs a
form releasing all claims against the Company which shall be furnished by the
Company no later than 45 days after the effective termination date (or within
45 days after an arbitrator determines that Employee is entitled to such payments),
and Employee does not thereafter revoke the release.


 


iv)            No Duty to Mitigate.  
In the event Employee’s employment is terminated in a manner that gives
Employee a right to receive payment described in subsections 4(b) and 4(b)(ii) (collectively,
“damages”), Employee shall have no obligation to mitigate such damages through
subsequent employment or other earnings.


 


(c)   Resignation Without Good Reason. 
Employee may resign employment at any time upon sixty (60) days’ notice
to the Company.  In such event, if
requested by the Company, Employee shall continue to render services and shall
be paid Employee’s regular salary and receive normal benefits up to the
effective date of termination.  In the
event of a resignation without Good Reason, all salary and other benefits
provided to Employee under this Agreement shall cease as of the date of
termination.


 


5.     This Agreement to be Kept Confidential. 
As a material condition to this Agreement, Employee agrees not to
disclose the terms of this Agreement, without the Company’s prior written
permission, to anyone other than an immediate family member or an attorney,
accountant or other professional advisor who agrees in advance to honor this
confidentiality requirement.  Employee
further understands that, so long as the Company has reporting obligations
under SEC regulations, the Company is not prohibited from disclosing the terms
of this Agreement to the extent legally required by applicable reporting
requirements.  This Agreement also does
not prohibit Employee from disclosing the terms of this Agreement to the 


 


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extent necessary to enforce this Agreement or
disclosures to the extent legally required by a subpoena or court order,
provided that the Company is notified in writing of such a disclosure
obligation within five (5) days after it arises.  In the event that Employee violates the
confidentiality obligations of this Section, the Company reserves the right to
cancel this Agreement.


 


6.     Inventions and Confidential Information Agreement. 
As a pre-condition to the effectiveness of this Agreement, Employee has
executed or shall execute a standard Company Inventions and Confidential
Information Agreement.  Employee
acknowledges and agrees that any breach by Employee of such Agreement shall
constitute a violation of subsection 4(a)(ii) of this Agreement for Cause, and
the Company shall have all rights and obligations provided for.


 


7.     Arbitration of Disputes. 
Final and binding arbitration shall be the exclusive remedy for all
disputes between the Company and Employee regarding the validity,
interpretation or effect of this Agreement.


 


(a)   Procedure.  Any such
arbitration shall be in accordance with the procedures of the American
Arbitration Association (“AAA”).  The
arbitration hearing will be held before an experienced employment arbitrator or
panel of arbitrators licensed to practice law in the state of Georgia and
selected in accordance with the rules of the AAA.  The forum for such arbitration shall be
Atlanta, Georgia.


 


(b)   Required Notice. 
The party seeking arbitration of a dispute under this Section must give
specific written notice of any claim to the other party within six (6) months
of the date the party seeking arbitration first has knowledge of the event
giving rise to the dispute; otherwise, the claim shall be void and deemed
waived, even if there is a federal or state statute of limitations which would
have given more time to pursue the claim.


 


(c)   Expenses. 
The Company shall initially be responsible for payment of arbitration
costs, excluding Employee’s attorneys’ fees; provided, however, that the
arbitrator shall have the authority to fashion an equitable division of costs
if the arbitrator finds that such costs are unduly burdensome with respect to
either party.  All other costs and
expenses associated with the arbitration, including but not limited to
attorneys’ fees, shall be borne by the party incurring the expense, unless
applicable law provides for a different allocation, in which event the
arbitrator can order that costs and expenses be allocated in accordance with
applicable law.  In any arbitration
related to the breach of the terms of this Agreement, the arbitrator shall have
the authority to award attorneys’ fees and costs to the prevailing party.


 


8.     Miscellaneous.


 


(a)   Governing Law.  This Agreement
shall be construed under, governed by, and enforced in accordance with the laws
of the State of Georgia, without regard to its choice of law provisions.  This Agreement shall further be construed to
comply with Section 409A of the Internal Revenue Code of 1986, as amended.


 


(b)   Notice.  Any notice
required or desired to be given under this Agreement by Employee to the Company
shall be provided in writing via hand-delivery, facsimile (with confirmation of
delivery), recognized express courier, or Certified Mail to the Vice President
of 


 


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Human Resources, Oglethorpe Power Corporation, 2100
East Exchange Place, Tucker, Georgia 30085-1359, fax number: 770-270-7676.  Any notice required or desired to be given
under this Agreement by Company to the Employee shall be provided in writing
via hand-delivery, recognized express courier, or Certified Mail to Employee at
the address listed below Employee’s signature or at Employee’s Company
office.  Notice shall be deemed given
upon the date of delivery.  Addresses or
facsimile numbers may be changed by providing notice in accordance with this
Section.


 


(c)   Assignment and Successorship. 
The rights and obligations of the Company under this Agreement shall
inure to the benefit of, and shall be binding upon, the successors and assigns
of the Company.  This Agreement shall
also be binding upon and shall inure to the benefit of Employee and Employee’s
estate, but Employee may not assign any rights or delegate any duties or
obligations under this Agreement, except to the extent permitted under the
Company’s benefit plans.


 


(d)   Complete Agreement.  This Agreement
shall constitute the entire agreement between the parties with respect to the
subjects addressed in this Agreement. 
Any subsequent alteration or modification to this Agreement must be made
in writing and signed by both parties.


 


(e)   Severability.  Should any
provision of this Agreement or portion be ruled void, invalid, unenforceable or
contrary to public policy by any court of competent jurisdiction, then any
remaining portion of such provision and all other provisions of this Agreement
shall survive and be applied and any invalid or unenforceable portion shall be
construed or performed to preserve as much of the original words, terms,
purpose and intent as shall be permitted by law.


 


(f)    Counterparts.  This Agreement
shall be executed in duplicate counterparts. 
Each counterpart is deemed an original of equal dignity with the
other.  The official executing this
Agreement on behalf of the Company represents and warrants that he or she has
full requisite authority to do so.


 


(g)   Waiver of Breach.   The waiver by
the Company or Employee of a breach of any provision of this Agreement by the
other shall not operate or be construed as a waiver of any subsequent breach by
Employee or the Company, respectively.


 


(h)   Prior Employment Contract. 
This Agreement shall supersede and replace any and all prior contracts
for employment between the Company and Employee.


 


So agreed, effective as of the date written on page 1
above.


 


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  EMPLOYEE:

  	
   

  	
  COMPANY:

  
	
   

  	
   

  	
   

  
	
  /s/ Charles W.
  Whitney

  	
   

  	
  /s/ Thomas A.
  Smith

  
	
   

  	
   

  	
   

  
	
  Date: 

  	
  August 20, 2009

  	
   

  	
  Date: 

  	
  August 18, 2009

  
	
   

  	
   

  	
   

  	
   

  
	
  Printed Name: 

  	
  Charles W.
  Whitney

  	
   

  	
  Printed Name: 

  	
  Thomas A. Smith

  
	
   

  	
   

  	
   

  	
   

  
	
  Address: 

  	
  4786 Old Timber
  Ridge Rd.

  	
   

  	
  Title: 

  	
  President and
  CEO

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Marietta, GA
  30068

  	
   

  	
   

  	
   

  



 


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