EXHIBIT NO. 10-35
AMENDMENT
Amendment Number Two (2) to Employee Invention and
Confidentiality Agreement Existing Executive, by and between, New
York State Electric & Gas Corporation (the "Company") and Xxxx X.
Xxxxxx ("me" or "I") is made and entered into this 3rd day of
November, 1997.
WHEREAS the Company and I are parties to a certain Employee
Invention and Confidentiality Agreement dated May 28, 1997 (the
"Agreement"), which was amended by Agreement dated July 2, 1997.
WHEREAS the Company and I now wish to amend that Agreement
to increase the period of noncompetition from one (1) year to two
(2) years; to modify the provisions relating to Consideration and
Wage Maintenance; and to otherwise modify the Agreement to
reflect my retirement effective January 1, 1998;
It is therefore agreed:
1. Section 7 - Nonsolicitation of the Agreement is
amended to read as follows:
Subject to the provisions of Section 10 and
independent of any obligations I might have under Section 9,
for a period of two (2) years after termination of my
employment with the Company for any reason or for no reason,
I will not, directly or indirectly, (a) divert or attempt to
divert any person, concern or entity which is furnished
services by the Company from doing business with the Company
or otherwise to change its relationship with the Company; or
(b) induce or attempt to induce any customer or supplier of
the Company to cease being a customer or supplier of the
company or otherwise to change its relationship with the
Company; or (c) render services, directly or indirectly, to
any Conflicting Product to any customer or supplier, or
prospective customer or supplier, of the Company with whom I
had direct or indirect contact or about whom I may have
acquired any knowledge during the two (2) years prior to
termination of my employment with the Company.
2. Section 8 - Solicitation of Employees of the
Agreement is amended to read as follows:
I agree that, during my employment with the
Company and for a period of two (2) years following
termination of my employment with the Company for any or no
reason, I shall not, directly or indirectly, solicit or
induce, or attempt to solicit or induce, any employee of the
Company to leave the Company for any reason whatsoever, or
hire or solicit the services of any employee of the Company.
3. Section 9 - Restrictions on Competition of the
Agreement is amended to read as follows:
Subject to the provisions of Section 10 and
independent of any obligations that I might have under
Section 7, for a period of two (2) years after termination
of my employment with the Company for any reason or for no
reason, I will not render services, directly or indirectly,
within the Territory to or for any Conflicting Organization,
whether as principal or as agent, officer, director,
employee, consultant, shareholder, or otherwise, alone or in
association with any other person, corporation, or entity.
I may, however, accept employment or perform services in the
Territory to or for a Conflicting Organization whose
business is diversified, and which as to the part of the
business in which I am engaged is not a Conflicting
Organization, provided that the Company, prior to my
accepting such employment or performing such services, shall
receive separate written assurances satisfactory to the
Company from such Conflicting Organization and from me, that
I will not render services directly or indirectly in
connection with any Conflicting Product. I recognize that
the Company conducts or intends to conduct business within
the Territory, and therefore, I agree that this restriction
is reasonable and necessary to protect the Company s
business. Further, I agree that the Company may modify the
Territory, upon advance notice to me, in response to changes
in the Company s business or as my duties and
responsibilities change or evolve.
4. Section 10 - Consideration and Wage Maintenance of
the Agreement is amended to read as follows:
10.1 In consideration for my agreements as
contained herein, the Company agrees to pay to me a one-time
cash payment of One Thousand Five Hundred Dollars
($1,500.00). I acknowledge that I have already received
this one-time cash payment.
10.2 If I am entitled to receive Severance
Payments as defined in the Severance Agreement based upon
the circumstances surrounding termination of my employment
with the Company, then such Severance Payments, and other
rights and benefits to which I am entitled under the
Severance Agreement, shall constitute additional
consideration for my covenants, obligations and agreements
contained in this Agreement and I will not be entitled to
receive any payments set forth in Section 10.3, below.
10.3 If I am not entitled to receive Severance
Payments as defined in the Severance Agreement based upon
the circumstances surrounding termination of my employment
with the Company, then as additional consideration for
entering into this Agreement, should the Company terminate
my employment for any or no reason or upon my retirement at
the end of business on December 31, 1997, the Company will
pay me severance benefits in the total amount of $451,000
(the Separation Payments). The Separation Payments will be
paid in installments as follows:
1. During the first year following my
termination or retirement, the Separation Payments
will be paid in twelve (12) equal monthly
installments of $25,916.66 subject to withholding
for federal and state income taxes, FICA, and such
other and further deductions as may be required by
law.
2. During the second year following my
termination or retirement, the separation payments
will be paid in twelve (12) equal monthly
installments of $11,666.66, subject to withholding
for federal and state income taxes, FICA, and such
other and further deductions as may be required by
law.
10.3.1 Delete
10.3.2 Delete
10.3.3 Delete
10.3.4 Delete
10.3.5 Delete
5. Appendix C and D of the Agreement is deleted.
6. If I should die after termination or retirement,
the balance of the payments not yet made under this
Agreement shall be payable to my wife, Xxxx X. Xxxxxx, if
living, if not to my daughter, Xxxxxxxx X. Xxxxxx.
Except as herein modified, the Agreement is hereby
ratified and confirmed.
Xxxx X. Xxxxxx
Xxxx X. Xxxxxx
New York State Electric & Gas Corporation
By: Xxxxxxx X. Xxxxxx
Title: November 3, 1997
