EXHIBIT 10.29
SEPARATION AGREEMENT AND GENERAL RELEASE
AND COVENANT NOT TO XXX
This Separation Agreement and General Release (the " Agreement") is entered into
by Xxxxxx Xxxxxxxxx (the "Employee") and The Connecticut Water Service, Inc. and
Barnstable Water Company ("The Company"). The Employee and the Company hereby
agree as follows:
1. Employee and the Company are entering into this Separation Agreement
and General Release in order to assist Employee in his transition from
employment and to ensure that Employee commences no legal claims or
proceedings against the Company, Barnstable Water Company, or any
related person or entity. In consideration for the execution of this
Agreement and the release set forth herein, the Employee acknowledges
and agrees that he has voluntarily terminated his employment and the
Company agrees to provide Employee with a lump sum payment in the
amount of three hundred eighty four thousand four hundred eleven
dollars and fifty-three cents ($384,411.53) less all applicable
federal, state and local taxes and withholdings. The Company agrees to
make such payment to Employee within fifteen (15) business days of the
expiration of the revocation period set forth below in Section 9.
As an additional consideration, the Company agrees to pay Employee a
supplemental pension benefit as described in the Supplemental Pension
Agreement between Xxxxxx Xxxxxxxxx and Connecticut Water Service, Inc.
and Barnstable Water Company that is provided as an addendum to this
agreement.
Employee acknowledges and agrees that the payments described above in
this Section are provided in consideration of the terms of this
Separation Agreement and that Employee would not otherwise be entitled
to them. Employee also acknowledges and agrees that he has voluntarily
elects to terminate his employment and that his last day of employment
with the Company was December 14, 2001.
2. The Company may at some time in the future, but shall not be obligated
or required to, enter into a separate agreement to engage the service
of Xx. Xxxxxxxxx as a consultant, under terms and conditions as may be
mutually agreed upon. In consideration of the payment described above
in Section 1, Employee agrees that he and his heirs, legal
representatives and assigns hereby waive, release and forever
discharge, and will not file or cause to be filed against the Company,
its Company, subsidiaries or affiliated companies (including but not
limited to the Barnstable Water Company), or any of their owners,
shareholders, directors, officers, employees or other agents
(hereinafter referred to collectively as "the Company and/or its
affiliates") any claim, lawsuit, complaint, whether known or unknown,
asserted or unasserted, suspected or unsuspected, which Employee may
have as a result of any incident, act, event or omission which has
occurred at any time up to and including the date of his signing of
this Agreement.
3. The Employee and Company mutually agree that this Agreement represents
the full and entire agreement between the parties and supercedes any
and all prior agreements or discussions between the parties with
respect to Xxxxxxxxx'x employment with or separation from the Company,
including but not limited to the Employment Agreement dated on February
23, 2001.
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4. Employee agrees that among the rights he knowingly and voluntarily
waives and releases are his right to bring any complaints against the
Company and/or its affiliates (including but not limited to the
Barnstable Water Company) arising or occurring on or before the date of
his signing of this Agreement, including but not limited to all such
claims or causes of action arising under Title VII or the Civil Rights
Act, the Age Discrimination in Employment Act, the Employee Retirement
Income Security Act, the Americans with Disabilities Act, the Family
and Medical Leave Act, and any other federal, state or local law
dealing with discrimination on any basis, including but not limited to
sex, age, race, national origin, sexual orientation, veteran status,
marital status, religion, and physical and/or mental disability.
Employee also agrees that he is waiving and releasing all rights to
bring any complaints against the Company and/or its affiliates
(including but not limited to Barnstable Water Company) alleging unpaid
wages, breach of contract, wrongful termination, infliction of
emotional distress or any other possible claim arising or occurring on
or before the date of Employee's signing of this Agreement. Employee
also agrees that he is waiving and releasing any claims to which he
might otherwise have been entitled under the terms of his employment
agreement dated February 23, 2001. Employee and Employer agree that
this release does not impair or affect any vested benefit rights
protected by ERISA to the extent that those benefits vested prior to
the end of Employee's employment.
5. Employee acknowledges that he has been advised to consult with an
attorney regarding this Agreement. Employee also acknowledges that he
has been given at least twenty-one (21) calendar days from receipt of
this Agreement to consider it and decide whether or not to enter into
this Agreement. Employee further acknowledges that he has had
reasonable and sufficient time to consider this Agreement and is
voluntarily signing it without duress or coercion on the date indicated
below. Employee acknowledges that he has read this Agreement in its
entirety and that he understands its meaning and effect.
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6. Employee agrees that the existence, terms and conditions of this
Agreement are confidential matters and that he will not disclose them
to anyone other than his spouse and his legal or financial advisors.
Employee also agrees that he will not disclose the existence, terms or
conditions of this Agreement to his spouse or his financial and legal
advisors without first informing such individuals that they are
required to keep confidential the existence, terms and conditions of
this Agreement and securing their agreement to maintain such
confidentiality. Employer also agrees that the existence, terms and
conditions of this Agreement are confidential matters and that they
will not be disclosed, except as may be required as a business
requirement, a regulatory proceeding or other force of law.
If at some time in the future Employee believes that he is required to
disclose the existence, terms or conditions of this Agreement by force
of law or otherwise, Employee agrees to notify in writing the President
of the Company at least ten days in advance of the required disclosure.
Employee understands that in the course of Employee's employment by
Company, Employee has received or had access to confidential
information concerning the business or purposes of Company and Parent,
and which Company and Parent desire to protect. Such confidential
information shall be deemed to include, but not be limited to,
Company's financial records, regulatory compliance data, customer lists
and information, and employee lists, including, if known, personnel
information and data. Confidential information shall specifically not
include, verbal or written, in any form whatsoever, filed with or
delivered to any public authority which would be considered to be
available to the public in accordance with applicable state laws.
Employee agrees that Employee will not, at any time during the period
ending two (2) years after the date of termination of Employee's
employment, reveal
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to anyone outside Company or Parent or use for Employee's own benefit
any such information without specific written authorization by Company
or Parent. Employee further agrees not to use any such confidential
information or trade secrets in competing with Company or Parent at any
time during or in the two (2) year period immediately following the
date of termination of Employee's employment with Company.
7. Employee and the Company agree that he has voluntarily terminated his
employment with the Company and Barnstable Water Company and this
Agreement is not, and shall not be considered as an admission of any
wrongdoing or liability on the part of the Employee or the Company
and/or its affiliates. Employee agrees that he will not request or
apply for any job or re-employment with the Company and/or its
affiliates except as a consultant as provided for in Section 1.
8. This Agreement will not become effective or enforceable until the
eighth calendar day after Employee has signed it. Employee understands
that if he wished to revoke this Agreement for any reason or for no
reason at all, Employee may do so during the first seven (7) calendar
days following his signing of it by delivering written notice of such
revocation to the President of the Company. Employee also understands
that if no such notice of revocation is received by the President of
the Company within seven (7) calendar days following Employee's signing
of this Agreement, this Agreement shall become effective and
enforceable as of the eighth day following Employee's signing of it.
9. Employee and the Company agree that no changes to this Agreement will
be effective unless made in writing and signed by both parties.
Employee also acknowledges that in deciding to enter into this
Agreement, he has not received and is not relying on any
representations, promises, or assurances of any kind other than those
expressly set forth in writing in this
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Agreement. In the event that any provision of this Agreement is held to
be void or unenforceable by a court of competent jurisdiction, the
remaining provisions of this Agreement will nevertheless be binding
upon the parties as though the void or unenforceable part has been
deleted.
10. Employee and the Company agree that this Agreement shall be governed by
Massachusetts law and that Employee and the Company shall be subject to
the personal jurisdiction of the state and federal courts of
Massachusetts should any dispute arise concerning this Agreement.
Employee and the Company further agree that if either party ever files
any claim against or sues the other, in any forum or proceeding,
whether related to this Agreement or not, the prevailing party as
determined by the court or the finder of fact shall be entitled to
recover from the other party its reasonable attorneys' fees and costs
incurred in that action, as well as any compensatory or other damages
available under applicable law.
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WHEREFORE, intending to be bound by the terms and conditions of the foregoing
Separation Agreement and General Release, the undersigned parties hereby execute
it on the dates set forth below:
EMPLOYEE:
/s/ Xxxxxx Xxxxxxxxx
--------------------------
Xxxxxx Xxxxxxxxx
STATE OF MASSACHUSETTS:
ss:
COUNTY OF BARNSTABLE:
On this 14th day of December, 2001, before me personally appeared
Xxxxxx Xxxxxxxxx, to me known to be the person described in the
foregoing Agreement, who in my presence executed the same,
acknowledging such execution to be his free act and deed.
XXXXX X XXXXXX
/s/: Xxxxx X. Xxxxx Notary Public
Notary Public My Commission Expires
My Commission Expires:11/25/05 November 25, 2005
CONNECTICUT WATER SERVICE, INC.
/s/: Xxxxxxxx X. Chiarlauce
---------------------------------
Xxxxxxxx X. Xxxxxxxxxx
STATE OF CONNECTICUT:
ss: Clinton
COUNTY OF MIDDLESEX:
On this 17th day of December, 2001, before me personally appeared Xxxxxxxx X.
Xxxxxxxxxx, who in my presence executed the foregoing Agreement, acknowledging
such execution to be his free act and deed on behalf of The Connecticut Water
Service, Inc.
/s/ Xxxxxxxxx X. Xxxxxx
Notary Public
My Commission Expires: 5/31/05
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XXXXXX XXXXXXXXX
SUPPLEMENTAL PENSION AGREEMENT
This Agreement made this 14th day of December, 2001, by and between
Connecticut Water Service, Inc. and Barnstable Water Company (said companies
hereinafter collectively referred to as the "Employer"), and Xxxxxx Xxxxxxxxx
(the "Employee"),
WITNESSETH:
WHEREAS, in connection with the implementation of a Separation
Agreement between Employer and Employee, the parties also wish to provide the
Employee with supplemental pension benefits in order to make up for retirement
benefits the Employee would have accrued under the Barnstable Water Company
Pension Plan had he continued employment with the Employer; and
WHEREAS, it is the intention of the parties that this Agreement shall
constitute an unfunded arrangement for the purpose of providing supplemental
pension benefits for the Employee;
NOW, THEREFORE, the parties hereby agree as follows:
1. Definitions.
(a) "Board of Directors" means the Board of Directors of
Connecticut Water Service, Inc., or any successor to such corporation.
(b) "Code" means the Internal Revenue Code of 1986, as amended
from time to time, and as interpreted from time to time by any regulations
issued pursuant thereto, and references to any section thereof shall be deemed
to refer to the like section of any subsequent federal internal revenue law.
(c) "Employee" means Xxxxxx Xxxxxxxxx.
(d) "Employer" means, collectively, Connecticut Water Service,
Inc. and Barnstable Water Company, or any successor to said corporations.
(e) "Other Payee" means any surviving spouse, beneficiary , or
contingent annuitant of the Participant entitled to benefits hereunder.
(f) "Pension Plan" means the Barnstable Water Company Pension
Plan, or any successor plan thereto, including, for example, any plan into which
the Barnstable Water Company Pension Plan is merged at a future date.
(g) "Separation Agreement" means the Agreement between the
Employer and the Employee, executed at the same time as this Agreement, entitled
"Separation Agreement and General Release and Covenant Not to Xxx."
2. Benefits Payable.
(a) In accordance with the Separation Agreement, a payment
shall be made to the Employee. The parties hereto recognize and agree that such
payment, and the period of time to which such payment is or may be deemed to
relate, shall not be taken into account in calculating Employee's average final
compensation, benefit service, benefits, or for any other reason under the
Pension Plan.
(b) Benefits under this Agreement shall commence to the
Employee at the same time as benefits become payable to the Employee under the
Pension Plan. For example, an election to take early retirement under the
Pension Plan shall be applicable here as well. Benefits under this Agreement
shall also be payable to the Employee in the same form as the Employee elects to
receive benefits under the Pension Plan. If the Participant elects a form of
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benefit payment that provides for a beneficiary or contingent annuitant, the
designation of a beneficiary or contingent annuitant under the Pension Plan and
the proportionate reduction in benefits shall control for purposes of this
Agreement as well. In no event, however, shall benefits be payable if the
Employee commences receipt of benefits under the Pension Plan on or before
February 23, 2006.
(c) The monthly benefit payable pursuant to this Agreement
shall be determined as the difference between (1) and (2), where (1) equals the
amount of monthly benefit which would have been payable to Employee under the
Pension Plan if he had continued to work for the Employer and receive bi-weekly
payments of $3,529.88 beginning with the first pay date in January 2002 and
ending with the last pay date on or prior to February 23, 2006; and (2) equals
the amount of monthly benefit actually payable under the Pension Plan. In
determining the amount of monthly benefit described in item (1) above, however,
any changes made under the Pension Plan made after the date of this Agreement
shall not be taken into account; benefits shall be computed as if such changes
were not made.
(d) In the event that Employee dies after February 23, 2006
and prior to commencing receipt of benefits under the Pension Plan, and if any
surviving spouse benefits are payable under the Pension Plan to Employee's
surviving spouse, then monthly benefits shall also be payable to Employee's
surviving spouse under this Agreement. The monthly benefit payable pursuant to
this Agreement shall be payable at the same time benefits are payable to the
surviving spouse under the Pension Plan, and shall be determined as the
difference between (1) and (2), where (1) equals the amount of the monthly
benefit which would have been payable to the surviving spouse under the Pension
Plan if Employee had
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continued to work for the Employer and receive bi-weekly payments of $3,529.88
beginning with the first pay date in January 2002 and ending with the last pay
date on or prior to February 23, 2006; and (2) equals the amount of monthly
benefit actually payable under the Pension Plan. In determining the amount of
monthly benefit described in item (1) above, however, any changes made under the
Pension Plan made after the date of this Agreement shall not be taken into
account; benefits shall be computed as if such changes were not made.
No benefits will be provided hereunder if Employee dies on or before February
23, 2006.
(e) In no event shall any benefits be payable under this
Agreement unless such payment is expressly provided for under the terms of this
Agreement.
3. Unsecured General Creditor. The Employee and any Other Payee shall
have no legal or equitable rights, interest or claims in any property or assets
of the Employer. Any and all of the Employer's assets shall be, and remain, the
general, unpledged, unrestricted assets of the Employer. The Employer's
obligation under this Agreement shall be merely that of an unfunded and
unsecured promise to make payments in the future. The Employee's status (and the
status of any Other Payee) is that of an unsecured general creditor of the
Employer.
4. Other Benefits. Any amounts payable under this Agreement shall not
be deemed salary or other compensation to the Employee for the purpose of
computing benefits to which he may be entitled under any plan or other
arrangement of the Employer for the benefit of its employees.
5. Claims Procedure. The Employer, acting through the Board of
Directors, has the discretionary authority to construe this Agreement and to
determine any questions of eligibility and entitlement to benefits under this
Agreement. In the event of a claim for
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benefits by the Employee or Other Payee, the Board of Directors shall determine
whether benefits are payable (and the amount thereof) within ninety (90) days of
the claim. If benefits are denied, the Board of Directors shall provide Employee
(or Other Payee) written notice of such denial and shall indicate the specific
provisions of the Agreement upon which the denial is based. Employee (or Other
Payee) shall then have sixty (60) days in which to appeal such denial, and to
present issues and comments in writing. Any final decision on appeal shall be
made by the Board of Directors and communicated to Employee (or Other Payee) in
writing within sixty (60) days of the appeal, indicating the specific provisions
of the Agreement upon which a denial is based if benefits are denied.
6. Entire Agreement: Amendments. This Agreement, together with the
Separation Agreement, contain the entire agreement and understanding of the
parties with respect to the subject matter contained herein, and all other prior
agreements or understandings of the parties are hereby revoked. This Agreement
may be amended or terminated only by a written instrument executed by the
Employee and the Employer. There are no agreements, restrictions, promises,
warranties, covenants or other undertakings other than those expressly set forth
in this Agreement and in the Separation Agreement. This Agreement may be
executed in one or more counterparts.
7. Severability. If any provision of this Agreement is held by an
arbitrator, arbitration panel, court or other judicial body of competent
jurisdiction to be illegal or invalid for any reason, said illegality or
invalidity shall not affect the remaining parts hereof, but this Agreement shall
be construed and enforced as if such illegal or invalid provision had never been
inserted herein.
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8. Prohibition on Assignment. The Employee's and Other Payee's
rights to benefit payments under this Agreement are not subject in any manner to
anticipation, alienation, sale, transfer, assignment, pledge, encumbrance,
attachment, or garnishment by creditors of the Employee or Other Payee. Neither
the Employee nor any Other Payee or any other person shall have any right to
commute, sell, assign, transfer, pledge, anticipate, mortgage or otherwise
encumber, transfer, hypothecate or convey in advance of actual receipt, the
amounts, if any, payable hereunder, or any part thereof, which are, and all
rights to which are expressly declared to be unassignable and non-transferable.
No part of the amounts payable shall, prior to actual payment, be subject to
seizure or sequestration for the payment of any debts, judgments, alimony or
separate maintenance owed by the Employee, Other Payee, or any other person, nor
be transferable by operation of law in the event of the Employee's, Other
Payee's or any other person's bankruptcy or insolvency.
9. Successors. The Employer shall require any successor
(whether direct or indirect, by purchase, merger, consolidation, reorganization,
operation of law or otherwise) to all or substantially all of the business
and/or assets of the Employer, expressly to assume and to agree to perform this
Agreement in the same manner and to the same extent that the Employer would be
required to perform if no such succession had taken place. This Agreement shall
be binding upon and inure to the benefit of the Employer and any successor of or
to the Employer, including without limitation any persons acquiring directly or
indirectly all or substantially all of the business and/or assets of the
Employer whether by sale, merger, consolidation, reorganization, operation of
law or otherwise (and any such successor to the Employer shall thereafter be
deemed the "Employer," as the case may be, for the purposes of
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this Plan); and shall be binding upon and inure to the benefit of the Employee,
any Other Payee, and the beneficiaries, heirs, executors, administrators, and
legal representatives of the Employee and all Other Payees.
10. Construction of Agreement. The headings of the sections of this
Agreement are inserted for convenience only and shall not be deemed to
constitute part of this Agreement or to affect the construction hereof. Where
the context requires: (a) any use of gender shall be deemed to be masculine,
feminine or neuter, and (b) any use of the singular or the plural shall include
the other.
11. Facility of Payment. If the Employer determines after receipt of
evidence satisfactory to it, that the Employee or any Other Payee, as the case
may be, to whom a payment is due hereunder is incompetent by reason of physical
or mental disability or is a minor, the Employer shall have the power to cause
the payments becoming due to such Employee or Other Payee to be made to another
for the Employee or Other Payee, without responsibility of the Employer to see
the application of such payment. Payments made pursuant to such power shall
operate as a complete discharge of the Employer.
12. Taxes. The Employer shall have the right to deduct from any payment
made or to be made pursuant to this Agreement any federal, state or local taxes
required by law to be withheld.
13. Governing Law. This Agreement shall be construed in accordance with
and governed by the laws of the State of Connecticut.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed on the dates set forth below.
EMPLOYEE
/s/ Xxxxxx Xxxxxxxxx
------------------------------
Xxxxxx Xxxxxxxxx
COMMONWEALTH OF MASSACHUSETTS:
COUNTY OF BARNSTABLE:
On this 14th day of December, 2001, before me personally appeared Xxxxxx
Xxxxxxxxx, to me known to be the person described in the foregoing Agreement,
who in my presence executed the same, acknowledging such execution to be his
free act and deed.
XXXXX X. XXXXXX
/s/: Xxxxx X. Xxxxx Notary Public
Notary Public My Commission Expires
My Commission Expires: 11/25/05 November 25, 2005
CONNECTICUT WATER SERVICE, INC.
/s/: Xxxxxxxx X. Xxxxxxxxxx
-------------------------------
Xxxxxxxx X. Xxxxxxxxxx
STATE OF CONNECTICUT:
ss: Clinton
COUNTY OF MIDDLESEX:
On this 17th day of December, 2001, before me personally appeared Xxxxxxxx X.
Xxxxxxxxxx, who in my presence executed the foregoing Agreement, acknowledging
such execution to be his free act and deed on behalf of The Connecticut Water
Service, Inc.
/s/ Xxxxxxxxx X. Xxxxxx
Notary Public
My Commission Expires: 5/31/05
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BARNSTABLE WATER COMPANY
By: /s/ Xxxxxxxx X. Xxxxxxxxxx
-----------------------------------
Xxxxxxxx X. Xxxxxxxxxx
STATE OF CONNECTICUT
xx Xxxxxxx
COUNTY OF Middlesex:
On this 17th day of December, 2001, before me personally appeared Xxxxxxxx X.
Xxxxxxxxxx, who in my presence executed the foregoing Agreement, acknowledging
such execution to be his free act and deed on behalf of the Barnstable Water
Company.
/s/ Xxxxxxxxx X. Xxxxxx
--------------------------------
Xxxxxxxxx X. Xxxxxx
Notary Public
My Commission Expires: 5/31/05
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