Exhibit 10(aq)


 


Maine
& Maritimes Corporation


 


 


EMPLOYEE
RETENTION AGREEMENT


 


THIS
EMPLOYEE RETENTION AGREEMENT dated as of September 5, 2003 (this “Agreement”)
is entered into between Maine & Maritimes Corporation, a Maine corporation
(the “Company”), and John P. Havrilla (the “Executive”) (the Company and
Executive are sometimes referred to as “Party” or collectively “Parties”).


 


RECITALS


 


WHEREAS,
the Executive, has been employed by the Company in a management capacity and is
now its Vice President, Business Development and Unregulated Businesses; and


 


WHEREAS,
the Board of Directors of the Company has determined this Agreement to be in
the best interests of the stockholders of the Company, in order to encourage
the attention and dedication of the Executive to his assigned duties with the
Company without distraction in connection with potentially disruptive
circumstances arising from the possibility of a Change in Control (as defined
herein) or certain other events specified in this Agreement;


 


Now,
THEREFORE, in consideration of the mutual promises and covenants contained
herein and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged by the Parties, the Company and the
Executive agree as follows:


 


Section 1.                                            Certain Definitions


 


As used herein, the following terms have the indicated meanings:


 


(1)                                  “Cause” for
termination by the Company of the Executive’s employment shall mean (i) the
willful and continued failure by the Executive to substantially perform his
duties with the Company after a written notice is delivered to the Executive by
the Company, which notice specifically identifies the manner in which the
Company believes that the Executive has not substantially performed the
Executive’s duties; or (ii) the willful engaging by the Executive in gross
misconduct that is injurious to the Company, monetarily or otherwise
(including, without limitation, the Executive’s conviction, by a court of
competent jurisdiction, of a crime adversely reflecting on the Executive’s
honesty, trustworthiness or fitness to carry out the responsibilities of his
position with the Company). An act, or failure to act, on the Executive’s part
shall be deemed “willful” where such act is done, or not done, by the
Executive: (i) in the absence of good faith; or (ii) without a reasonable
belief that the Executive’s act, or failure to act, was in the best interest of
the Company.


 


(2)                                  For the purpose of this definition (“Change in
Control”) only, the term “Company,” first defined above, shall also
be defined to include Maine Public Service Company in addition to its parent,
Maine & Maritime Corporation. A “Change in Control” shall be deemed to
have occurred if the conditions set forth in any one of the following
paragraphs shall have been satisfied:


 


(a)                                  any “person” (as such term is used in
Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended)
(other than the Company, any trustee or other fiduciary holding securities
under any employee benefit plan of the Company, or any corporation owned
directly or indirectly by the stockholders of the Company in substantially the
same proportion as their


 

















 


ownership
of stock of the Company) is or becomes the “beneficial owner” (as defined in
Rule 13d-3 under the Securities Exchange Act of 1934, as amended), directly or
indirectly, of securities of the Company representing fifty percent or more of
the combined voting power of the Company’s then outstanding voting securities;


 


(b)                                 a change in the composition of the Board of
Directors of the Company, as a result of which fewer than a majority of the
directors are persons who either (A) are directors of the Company as of the
date hereof or (B) were elected after nomination by a majority of the directors
of the Company on the date hereof and directors so elected previously;


 


(c)                                  any merger or consolidation of the Company,
approved by the stockholders of the Company, with any other corporation; other than:


 


(A)                         any such merger or consolidation that would
result in the voting securities of the Company outstanding immediately prior to
the merger or consolidation, continuing to represent (either by remaining
outstanding or by being converted into voting securities of the surviving or
parent entity) more than fifty percent of the combined voting power of the
voting securities (entitled to vote generally for the election of directors) of
the Company or such surviving or parent entity outstanding immediately after
such merger or consolidation, or subsequently at any time as contemplated by or
as a result of, such merger or consolidation; or


 


(B)                           any such merger or consolidation where such
merger or consolidation is effected to implement a recapitalization or
reincorporation of the Company (or similar transaction) in which no “person”
(as such term is used in Sections 13(d) and 14(d) of the Securities Exchange
Act of 1934, as amended) acquires fifty percent or more of the combined voting
power of the Company’s then-outstanding voting securities;


 


(d)                                                    any merger or consolidation of the Company in
which the Company is not the continuing or surviving corporation or pursuant to
which shares of the Company’s stock, would be converted into cash, securities
or other property; other than a merger or consolidation of
the Company in which the stockholders of the Company immediately prior to the
merger or consolidation have substantially the same proportionate ownership and
voting control of the surviving corporation or parent entity immediately after
the merger or consolidation;


 


(e)                                                     except as described below, the Company ceases
to be a reporting company pursuant to Section 13 (a) of the Securities
Exchange Act of 1934 as amended, or any similar successor provision;


 


(f)                                                       the number of the Company’s Outside
Directors, as defined below, is decreased by more than fifty percent in any
twenty-five month period or the number of the Company’s directors increased in
such a manner that the Outside Directors constitute less than a majority of the
Board;


 


(g)                                                    the stockholders of the Company approve a
plan of complete liquidation of the Company or an agreement for the sale,
lease, exchange, liquidation, disposition or other transfer (in one transaction
or a series of transactions) by the Company of all or substantially all of the
Company’s assets (or any transaction having a similar effect).


 


(h)                                                    further, a “Change in Control” shall not be
deemed to occur if the conditions set forth in the following sub-paragraph
shall have been satisfied:


 

















 


(A)                              a merger, consolidation or reorganization of
the Company if, upon consummation of such transaction all of the outstanding
voting stock of the Company is owned, directly or indirectly, by a holding
company, and the holders of the Company’s common stock immediately prior to the
transaction have substantially the same proportionate ownership and voting
control of the holding company.


 


(3)                                  “Good Reason” for termination by the Executive of the Executive’s employment shall
mean the occurrence of any one of the following acts unless such act is
corrected prior to the Termination Date specified in the Termination Notice
given in respect thereof or, in the case of paragraph (d) below, such act is
not objected to in writing by the Executive within four months after
notification by the Company to the Executive of the Company’s intention to take
the action contemplated by such paragraph (d):


 


(a)                                  the assignment of duties to the Executive
which:


 


(i)                                     are materially different from his duties
immediately prior to the Change in Control, or


 


(ii)                                  result in his having significantly less
authority or responsibility than he had prior to the Change in Control;


 


(b)                                 the Executive’s removal from, or any failure
to re-elect him to, any position he held immediately prior to the Change in
Control;


 


(c)                                  a reduction of the Executive’s annual base
salary in effect on the date of the Change in Control or as the same may be
increased from time to time thereafter;


 


(d)                                 the Company’s transferring or assigning the
Executive to a place of employment more than one hundred miles from Presque
Isle, Maine, except where: (1) such transfer or assignment is to a subsidiary
or affiliate entity location, consistent with the Executive’s duties; and (2)
in connection with required business travel to an extent substantially
consistent with the Executive’s business travel obligations immediately prior
to the Change in Control;


 


(e)                                  the Company’s failure to provide the
Executive with substantially the same health, life and other employee benefit
plans, programs and arrangements (specifically including the Company’s
compensation and incentive plans, as the same may be amended in the future),
and substantially the same perquisites of employment, as provided to him
immediately prior to the Change in Control or as the same may be increased
thereafter;


 


(f)                                    the Company’s failure to provide the
Executive with substantially the same support staff as provided to him
immediately prior to the Change in Control; or


 


(g)                                 the Company’s failure to increase the
Executive’s salary, employee benefits or perquisites of employment in a manner
or amount commensurate with increases provided to the Company’s other executive
officers.


 


(4)                                  “Outside Directors” an “Outside
Director” as of a given date, shall mean a member of the Company’s
board of directors who has been a director of the Company throughout the six month
period prior to such date and who has not been an employee of the Company at
any time during such six month period.


 

















 


(5)                                  “Termination Date” shall have the meaning stated in Section 2(2).


 


(6)                                  “Termination Notice” shall have the meaning stated in Section 2(1).


 


Section 2.                                            Termination Procedures


 


(1)                                  Termination Notice. Any purported termination of the Executive’s employment (other than by
reason of death, or at will termination) shall be communicated by a written
notice of the terminating party (a “Termination Notice”) in accordance with
Section 6 (2).


 


(2)                                  Termination Date. “Termination Date” shall mean the date as of which the Executive’s
employment is to terminate as specified in the Termination Notice, which, in
the case of a termination by the Company otherwise than for Cause, may be the
same date of the Termination Notice and, in the case of a termination by the
Executive, shall not be less than fourteen days nor more than sixty days,
respectively, from the date the Termination Notice is given, unless otherwise
agreed to by the parties.


 


Section 3.                                            Benefits Upon Certain Terminations


 


(1)                                  General. If
a Change of Control occurs and, within one year following the occurrence of
such Change of Control (i) the Company terminates the Executive’s employment
for any reason other than for Cause, or (ii) the Executive terminates his
employment for Good Reason, then in lieu of any further salary payments to the
Executive for periods subsequent to the Termination Date, the Company shall
provide the Executive with the following:


 


(a)                                  Within thirty business days after the
Termination Date, a lump sum cash payment equal to the sum of: (i) two hundred
percent (200%) of the Executive’s annual base salary in effect upon the Change
in Control or the date of the Termination Notice, whichever is higher, and (ii)
two hundred percent (200%) of the bonus award the Executive would have received
for the year in which such termination occurs pursuant to the Company’s
Incentive Compensation Plan, assuming that his employment had not terminated
and that for such year all applicable performance goals will be met. In the
event any portion of this award depends on goals that cannot be determined
until the close of the plan year, then payment of that amount shall be made
within thirty days after the goal has been determined.


 


(b)                                 The continuation of the Executive’s
participation and the participation of his dependants (to the extent they were
participating on the date of the Termination Notice) in the Company’s health,
life, disability and other employee benefit plans, programs and arrangements
(excluding the Pension Plan and the Non-Union Retirement Savings Plan) for a
period of twenty-four (24) months after such termination as if he were still
employed during such period; provided, however, if such participation in any
such plan, program or arrangement is specifically prohibited by the terms
thereof, the Company shall provide the Executive (and his dependants) with
benefits substantially similar to those which he was entitled to receive under
such plan, program or arrangement immediately prior to his termination of
employment. Additionally, at the end of any period of such coverage, the
Executive shall have the right to have assigned to him, for the cash surrender
value thereof, any assignable insurance owned by the Company on the life of the
Executive. For purposes of this paragraph 3(b), any employee benefit determined
with reference to the Executive’s compensation or earnings shall be based on
his annual base salary unless otherwise provided under the terms of the
applicable employee benefit plan, program or arrangement.


 


(2)                                  Death, at will termination. Notwithstanding any provision of this
Agreement to the contrary, no benefits are payable hereunder upon the
Executive’s death prior to: (1) the involuntary


 

















 


termination
of his employment with the Company for Cause or otherwise, or (2) the voluntary
termination by the Executive of the Executive’s employment with the Company for
Good Reason. No benefits are payable hereunder upon the Company’s at will
termination of employment for reasons other than those set forth in this
Agreement.


 


Section 4.                                            Term of Agreement


 


This
Agreement initially shall continue in effect until the third anniversary of the
date hereof.


 


Section 5.                                            Successors


 


In
addition to any obligations imposed by law upon any successor to the Company,
the Company will require any successor (whether direct or indirect, by
purchase, merger, consolidation or otherwise) to all or substantially all of
the business and/or assets of the Company to expressly assume and agree to
perform this Agreement in the same manner and to the same extent that the
Company would be required to perform it if no such succession had taken place.
Failure of the Company to obtain such assumption and agreement prior to the
effectiveness of any such succession shall be a breach of this Agreement and
shall entitle the Executive to compensation from the Company in the same amount
and on the same terms as the Executive would be entitled to hereunder if the Executive
were to terminate the Executive’s employment for Good Reason, except that, for
purposes of implementing the foregoing, the date on which any such succession
becomes effective shall be deemed the Termination Date.


 


Section 6.                                          Miscellaneous


 


(1)                                  Amendments. This
Agreement may not be amended, modified or supplemented by the parties hereto in
any manner, except by an instrument in writing signed on behalf of each of the
parties hereto.


 


(2)                                  Notices. Any
notice, request, instruction or other document to be given hereunder by any
party to the other shall be in writing and delivered personally or sent by
certified mail, postage prepaid, by facsimile (with receipt confirmed), or by
courier service and shall be effective upon receipt if addressed or sent as follows:


 


	
  To the Company:

  	
   

  	
  Maine & Maritimes Corporation

  
	
   

  	
   

  	
  P. 0. Box 789, Presque Isle, ME 04769-0789

  
	
   

  	
   

  	
  Fax:

  	
  207-760-2498

  	
   

  
	
   

  	
   

  	
  Attention:

  	
  J. Nick Bayne

  	
   

  
	
   

  	
   

  	
   

  
	
  To the Executive:

  	
   

  	
  John
  P. Havrilla

  
	
   

  	
   

  	
  P.O.
  Box 783

  
	
   

  	
   

  	
  Presque
  Isle, ME 04769-

  
	
   

  	
   

  	
  0783Fax:

  	
  207-760-2498

  	
   

  
							



 


or
to such other address or person as may be designated in writing by a party, by
a notice given to the others as aforesaid.


 


(3)                                  No Additional Effect. Except as expressly provided herein, nothing contained herein shal be
construed to provide the Executive with any specific period of employment,
right to be retained in the service of the Company or other rights, nor shall
this Agreement be construed to otherwise limit the right: of the Company to
discharge or take other action with respect to the Executive. The Executive
hereb3 acknowledges that he or she remains an employee at will of the Company
and that any rights of the


 

















 


Executive
arising under this Agreement arise only upon the circumstances specifically set
forth in this Agreement.


 


(4)                                  Construction. The headings in this Agreement are included only for convenience and
shall not affect the meaning or interpretation of this Agreement. The words
“herein” and “hereof’ and other words of similar import refer to this Agreement
as a whole and not to any particular part of this Agreement. The word
“including” as used herein shall not be construed so as to exclude any other
thing not referred to or described. The Outside Directors shall have the
authority to construe and interpret this Agreement on behalf of the Company,
and any such determination by the Outside Directors shall be the conclusive
construction on behalf of the Company.


 


(5)                                  Entire Agreement, Assignability, etc. This Agreement (i) constitutes the entire
agreement, and supersedes all other prior agreements, including without
limitation prior employee continuity agreements, and understandings, both
written and oral, between the parties with respect to the subject matter
hereof, (ii) is not intended to confer upon any person other than the parties
hereto any rights or remedies hereunder, except as otherwise expressly provided
herein, and (iii) shall not be assignable by operation of law or otherwise. No
provisions of this Agreement are intended, nor will be interpreted, to provide
or create any third party beneficiary rights or any other rights of any kind in
any person unless specifically provided otherwise herein, and, except as so
provided, all provisions hereof will be personal solely among the parties to
this Agreement.


 


(6)                                  Validity. The
invalidity or unenforceability of any provisions of this Agreement shall not
affect the validity or enforceability of any other provisions of this
Agreement, each of which shall remain in full force and effect.


 


(7)                                  Governing Law. This Agreement shall be governed by the laws of the State of Maine,
regardless of the laws that otherwise might govern under applicable principles
of conflicts of laws thereof.


 


(8)                                  Counterparts. This Agreement may be executed in counterparts, each of which shall be
deemed to be an original but both of which together shall constitute one and
the same instrument.


 


(9)                                  Funding. This
Agreement shall not be construed to create or require the Company to create a
trust or to otherwise act to fund the amounts payable hereunder.


 


(10)                            Limitation on Amount to be Paid. If payment of any amount under this Agreement
would cause the Executive to be subject to an excise tax pursuant to
Section 4999 of the Internal Revenue Code (as amended from time to
time) or the regulations thereunder, then such amount shall not be paid to the
extent necessary to avoid the imposition of such tax. The preceding sentence
shall apply only if the aggregate amount payable to the Executive or for his or
her benefit under this Agreement, after payment of such excise tax, would be
less than the aggregate amount payable in accordance with the preceding
sentence.


 


(11)                            Arbitration. The Parties agree to resolve all disputes arising under this Agreement
in arbitration as follows:


 


(a)                                  Any arbitration under this Agreement, and any
related judicial proceeding, shall be initiated and shall proceed pursuant to
the provisions of the Maine Uniform Arbitration Act (the “Act”) and, to the
extent consistent with the Act, the then prevailing rules of the American
Arbitration Association (the “Association”) for labor and employment contracts.
To initiate arbitration hereunder, demand shall be given in writing to the
Association and the other Party no later than one year after the


 

















 


claim
arises. Any claim for which such demand is not made within one year after the
claim arises shall be barred and discharged.


 


(b)                                      Any arbitration under this Agreement shall be
before a single arbitrator mutually acceptable to the Parties, and an award in
such arbitration may include only damages which the arbitrator determines to be
due under express provisions of this Agreement. The arbitrator shall have no
authority to award any other damages including without limitation,
consequential and exemplary damages. Any award in arbitration shall be subject
to enforcement and appeal pursuant to the Act.


 


(c)                                  The Parties shall share equally all costs and
fees charged by the Association or the arbitrator.


 


(12)                            Execution of Further Documents. In the event the Executive receives payments
or benefits pursuant to this Agreement and the Company’s legal counsel deems it
necessary for the Company to receive a release or other acknowledgement the
Executive agrees to execute any such document as may be reasonably required as
a condition of his/her receipt of such payment or benefits.


 


IN
WITNESS WHEREOF, the parties have duly executed this Agreement as of the date
first above written.


 


 


	
   

  	
  MAINE & MARITIMES CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ Nathan L. Grass

  	
   

  
	
   

  	
  By:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  EXECUTIVE

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ John P.
  Havrilla

  	
   

  
	
   

  	
  Name: JOHN P. HAVRILLA