AMENDED AND RESTATED EMPLOYMENT AGREEMENT
AGREEMENT dated as of July 14, 1999, between ENERGYNORTH,
INC., a New Hampshire corporation (the "Company"), and XXXXXXXX
X. XXXXXXXX residing in Bedford, New Hampshire (the "Executive").
WHEREAS, the Executive has been employed by the Company or
its subsidiaries in various executive positions and has performed
valuable services to the Company; and
WHEREAS, the Company and the Executive wish to amend and
restate the terms of that certain Employment Agreement dated as
of December 1, 1998 between the Company and the Executive; and
WHEREAS, the Executive is willing to continue in the employ
of the Company, and the Company desires to retain the services of
the Executive;
NOW, THEREFORE, in consideration of the foregoing and the
respective covenants and agreements of the Executive and the
Company herein contained, the parties hereto agree as follows:
1. Employment.
----------
The Company agrees to employ the Executive and, subject to
Section 2, may assign the Executive to work for it and for any
subsidiary or affiliated company, and the Executive agrees to
perform the duties assigned to her upon the terms and conditions
herein provided.
2. Position and Responsibilities.
-----------------------------
The Company shall employ the Executive and the Executive
agrees to serve, as Executive Vice President Officer, with such
duties and responsibilities as are customarily assigned to an
individual serving in such capacity, or any other executive
office to which she is elected that does not represent a material
diminution from the title, duties and responsibilities of the
office of Executive Vice President Officer, for the term and on
the conditions hereinafter set forth. The
Executive agrees to perform such services not inconsistent with her
position as shall be assigned to her by the Board of Directors of the
Company (the "Board"). If elected, the Executive shall also serve as
an officer of any of the Company's subsidiary or affiliated corporations
as may be requested by the Board.
3. Term of Agreement and Duties.
----------------------------
(a) Term of Employment. The period of the Executive's
employment under this Agreement shall be deemed to have commenced
as of December 1, 1998 and shall continue for a period of at least
twenty-four (24) full calendar months thereafter, subject to
renewal in accordance with Section 3(b) below.
(b) One-Year Evergreen Provision. This Agreement
----------------------------
shall be reviewed annually by the Board at its meeting held for
the review of compensation and in all events prior to December 1
of each year. At such yearly review, the Board shall consider
whether or not to extend the term of this Agreement for an
additional year. Unless the Board affirmatively votes not to
extend this Agreement, the term of employment and the termination
of this Agreement shall be extended for a period of one year from
the previous termination date. In the event the Board votes not
to extend this Agreement, the termination date of this Agreement
shall be the later of the expiration of twenty-four (24) months
from the effective date of this Agreement or twenty-four (24)
months from December 1st of the year in which this Agreement was
last extended.
(c) Duties. During such period of her employment
------
hereunder, except for illness, vacation periods, and reasonable
leaves of absence, the Executive shall devote substantially all
of her business time, attention, skill and efforts to the
faithful performance of her duties. With the approval of the
Board, however, the Executive may serve, or continue to serve,
on the boards of directors of, and hold any other offices or
positions in, companies or organizations, when, in the Board's
judgment, that service will not conflict with the interests of
the Company or any of its subsidiaries or affiliates or divisions
or materially affect the performance of the Executive's duties
pursuant to this Agreement.
4. Compensation.
------------
For all services to be rendered by the Executive in any
capacity during the period of her employment under this
Agreement, including, without limitation, services as an
executive, officer, director, or member of any committee of the
Company or of any subsidiary, affiliate or division thereof the
Company will pay or cause to be paid to the Executive and will
provide or cause to be provided to the Executive the following:
(a) Salary. The Executive shall be compensated by the
------
Company for her services in such capacities at the aggregate base
salary rate of one hundred seventy-five thousand dollars
($175,000) per year or such higher rate as the Board may, in its
discretion, determine, payable in equal installments no less
frequently than monthly. In addition, the Executive shall be
compensated by the Company crediting to her Deferred Compensation
Account, maintained in accordance with the Deferred Compensation
Agreement between the Executive and the Company, as amended or
replaced, such amount as the Board may, in its discretion,
determine, payable in equal installments no less frequently than
monthly.
(b) Incentive Compensation. The Executive shall be
----------------------
entitled to participate in any existing or future incentive
compensation, stock option, stock purchase or other bonus plans
covering the employees of the Company (or any subsidiary or
affiliate) on the same basis as other officers; and where
applicable, in any such plans of any subsidiary, affiliate or
division thereof from which she receives compensation.
(c) Deferred Compensation. The Executive shall have
---------------------
the right to defer what would otherwise be current compensation
in accordance with a Deferred Compensation Agreement entered into
between the Executive and the Company, as amended or replaced.
The Executive, may, in addition, be compensated by the Company
crediting amounts to her Deferred Compensation Account,
maintained in accordance with such Deferred Compensation
Agreement, as such intervals during each year as the Company may
determine.
(d) Automobile. The Company shall provide to the
----------
Executive an automobile, or an automobile allowance, for her
exclusive use on the same basis as other officers and in any
event on a basis no less favorable than that enjoyed by her at
the date of this Agreement.
(e) Vacations. The Executive shall be entitled to
---------
vacation pursuant to that policy applicable to other employees of
similar rank and stature at the Company.
5. Expenses.
--------
The Company (or its subsidiaries or affiliates, as the case
may be) shall reimburse the Executive for all reasonable
expenses, including travel, and other disbursements incurred by
her for or on behalf of the Company (or its subsidiaries or
affiliates) in the performance of her duties hereunder consistent
with the current reimbursement policies of the Company, but in no
event less favorable than the reimbursement policies in existence
on the effective date of this Agreement.
6. Participation in Benefit and Incentive Plans.
--------------------------------------------
The Executive shall participate in any retirement, pension,
group life, health or accident insurance, stock option, stock
purchase, restricted stock, bonus or any other employee benefit
or incentive plans generally available to the executives and
employees of the Company (or any subsidiary or affiliate),
whether now in force or hereafter adopted, in accordance with
their
terms. In the event the Executive is employed by the
Company pursuant to this Agreement and elects to retire under the
provisions of the EnergyNorth, Inc. Retirement Plan for Salaried
Employees ("Pension Plan"), the Executive shall be entitled to
the same post-retirement medical, life and other applicable
benefits that other officer level executives at the Company
receive upon retirement in accordance with the Company's then
existing administrative policies. Further, the Executive shall be
entitled to receive post-retirement medical, life and other
applicable benefits that other officer level executives at the
Company receive upon retirement in accordance with the Company's
then existing administrative policies and at the time the
Executive elects to retire under the provisions of the Pension
Plan if within two years after a Change of Control of the
Company, the Executive is discharged without Cause or resigns for
Good Reason as each of those terms is defined in the Amended and
Restated Management Continuity Agreement ("MCA") between the
Executive and the Company dated the date hereof.
7. Termination of Employment.
-------------------------
(a) Discharge for Cause. Notwithstanding any of the
-------------------
foregoing provisions of this Agreement, the Board may, subject to
this Section 7(a), discharge the Executive for Cause at any time
during the term of this Agreement. For the purposes of this
Section 7 cause shall mean: (i) conviction of a felony or crime
involving an act of moral turpitude, dishonesty or misfeasance,
in each case that substantially interferes with the orderly
business of the Company or any of its subsidiaries, (ii) refusal
of the Executive to follow or material neglect by the Executive
of reasonable requests of the Company made pursuant to this
Agreement (other than any such refusal or neglect resulting from
incapacity due to physical or mental illness), and (iii)
willfully engaging in conduct that substantially interferes with
or damages the standing or reputation of the Company or any of
its subsidiaries; provided, however, no termination for
Cause pursuant to either clause (ii) or (iii) hereof shall be effective
unless the Company shall have first provided the Executive (A) 30
days written notice in the manner contemplated by Section 15
setting forth in reasonable detail the Company's basis for such
termination, including the manner in which the Board believes the
Executive has not substantially performed her duties and (B) an
opportunity to cure any deficiencies noted by the Company in such
notice that Executive shall not have reasonably addressed (and if
so reasonably addressed, shall be deemed cured) prior to the
expiration of such 30-day period (the "For Cause Termination
Date"). In the event of termination of employment for Cause,
this Agreement and all of the rights and obligations of the
parties hereto shall forthwith terminate, except where this
Agreement expressly provides that any provisions survive
termination of this Agreement. For purposes of this Section
7(a), no act or failure to act by the Executive shall be
considered "willful" unless it is done, or omitted to be done, in
bad faith and without reasonable belief that the Executive's
action or omission was in the best interests of the Company.
(b) Termination by the Company. If the Company
--------------------------
terminates the Executive prior to termination of this Agreement
(except for Cause), the Company shall pay semi-monthly to the
Executive, or if she is not living, to her estate or to her
beneficiary designated hereunder, as the case may be, as
severance pay and as liquidated damages an amount equal to one-
half the average monthly rate of the Executive's salary paid and
accrued including any amount the Executive has elected to defer
during the 12 months immediately prior to his termination of
employment plus one-twenty-fourth (1/24) of the greater of (A)
the previous three years' annual average total incentive
compensation award earned under the EnergyNorth, Inc. Key
Employee Performance and Equity Incentive Plan (the "Incentive
Plan") to the Executive, including any amounts the Executive has
elected to defer and (B) the target level of incentive compensation
under the Incentive Plan for the year in which such termination
occurs. Such payments shall commence on the last day of the
month during which such termination occurs and shall continue
through the end of the term of this Agreement. The Executive
shall continue to receive medical, dental, vision and life
insurance benefits paid by the Company which shall continue
through the end of the term of this Agreement and at the time the
Executive elects to retire under the provisions of the Pension
Plan, the Executive shall receive post-retirement medical
benefits and life insurance in accordance with the Company's then
existing policies.
The Executive shall not be required to mitigate the amount
of any payment or benefits provided for by this Section 7 by
seeking other employment or otherwise, and if the Executive does
accept other employment, any payment or benefits hereunder shall
not be reduced by any compensation earned or other benefits
received by the Executive as a result of such employment.
In addition to the severance payment described in the first
paragraph of this Section 7(b), if the Company terminates the
Executive prior to the termination of this Agreement (except for
Cause), the Company shall pay to the Executive in one payment,
within ten days of the Date of Termination (as defined below), an
amount of cash equal to the product of (1) the number of shares
of Company Common Stock forfeited by the Executive pursuant to
Section 9.1 of the EnergyNorth, Inc. Key Employee Performance and
Equity Incentive Plan and (2) the average closing prices of
Company Common Stock on the New York Stock Exchange on the five
trading days ending on the Date of Termination (as defined
below).
If the Company terminates the Executive prior to the
termination of this Agreement, the Company's obligations to the
Executive shall be limited to those specified in this Section 7.
It is understood that the Company shall not be under any
obligation to make payments pursuant to
this Section 7(b) upon any termination of employment which gives
rise to payments under the MCA.
(c) Executive Termination for Cause or Death. If the
----------------------------------------
Executive is terminated for Cause under Section 7(a) hereunder,
or is unwilling to perform services hereunder, or dies while
employed, the Company shall have no further obligation hereunder
to make payments to the Executive beyond the Date of Termination
(as defined below) of employment but shall be responsible for and
obligated to pay to the Executive or her estate, as the case may
be, all accrued but unpaid compensation hereunder.
(d) Disability.
----------
(i) In the event that the Executive, because of
accident, disability or physical or mental illness, is incapable
of performing the essential functions of the job with or without
reasonable accommodation, the Company shall have the right to
terminate the Executive's employment under this agreement upon
thirty (30) days' written notice to the Executive. In the event
of any determination pursuant to this Section 7(d), the Company
shall make semi-monthly payments to the Executive in an amount
equal to one-half of the monthly rate of salary paid and accrued
to the Executive in the most recent month in which she was paid
prior to the determination of her disability plus one-twenty
fourth (1/24) of the greater of (A) the previous three years'
annual average total incentive compensation award earned under
the Incentive Plan and (B) the target level of incentive
compensation under the Incentive Plan for the year in which such
disability takes place, in each case, reduced by the amount of
monthly payments made under any long-term disability insurance or
plan of the Company, if any. Such semi-monthly payments shall
continue for the number of months remaining in the term of the
agreement following the date of her disability. In addition, if
the Executive becomes disabled
and the Executive has twenty (20) years or more of service
at the time of disability, the Company will continue to provide
the same medical, dental and life insurance benefits as provided
to other active employees until such time as the Executive
elects to retire under the provisions of the Pension Plan.
Disability for purposes of this section shall have the same
meaning as provided under any long-term disability policy of
the Company which covers the Executive, or, if none, as defined
in the EnergyNorth, Inc. Retirement Plan for Salaried Employees.
(ii) Prior to a determination of disability as
provided in Subsection (i) of this Section 7(d), if the Executive
fails to perform under this contract due to mental or physical
illness, the period of such failure to perform prior to such
determination of disability but subsequent to any accrued sick
days, vacation days and reasonable leaves of absence shall be
considered paid leave, and the Company shall continue to make
salary payments to the Executive for the duration of such paid
leave. Any period during which the Executive is receiving
benefits under any long-term disability plan of the Company shall
be considered unpaid leave.
(iii) The Company and the Executive
acknowledge and agree that any termination pursuant to Section
7(d) shall not be deemed a termination for Cause hereunder.
(e) Notice of Termination. Any termination by the
---------------------
Company (other than a termination for Cause pursuant to Section
7(a)) shall be communicated by Notice of Termination to the other
party hereto given in accordance with Section 15. For purposes
of this Agreement, a "Notice of Termination" means a written
notice which
(i) indicates the specific termination provision
in this Agreement relied upon,
(ii) sets forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of the
Executive's employment under the provision so indicated, and
(iii) if the Date of Termination (as defined
below) is other than the date of receipt of such notice,
specifies the termination date (which date shall be not more than
15 days after the giving of such notice).
(f) Date of Termination. "Date of Termination" means
-------------------
(i) if the Executive's employment is terminated
by the Company for Cause, the For Cause Termination Date as
specified in the notice provided pursuant to Section 7(a),
(ii) if the Executive's employment is terminated
by the Company other than for Cause, death or disability pursuant
to Section 7(d), the Date of Termination shall be the date on
which the Company notifies the Executive of such termination, and
(iii) if the Executive's employment is
terminated by reason of death or disability pursuant to Section
7(d), the Date of Termination shall be the date of death of the
Executive or the date the Executive is determined to be incapable
of performance in accordance with Section 7(d) of this Agreement,
as the case may be.
(g) Nothing under this Agreement shall affect the
Executive's right to receive payments under her Deferred
Compensation Agreement.
8. Executive's Obligations.
-----------------------
(a) Non-Competition.
---------------
(i) Except as provided in Section 8(a)(ii),
while receiving payments from the Company under this Agreement
and for a period of twelve months thereafter, the
Executive will not directly or indirectly, own, manage, operate,
control or participate in the ownership, management, operation or
control of, or be connected as an officer, employee, partner, director
or otherwise with, or have any financial interest in, or aid or
assist anyone else in the conduct of, any business (other than
the businesses of the Company) which is in direct competition
with the business conducted by the Company or any of its
subsidiaries, in any geographic area where such business is being
conducted during such period. Nothing in this Section 8,
however, shall restrict the right of the Executive to own,
whether for herself or as a fiduciary, not more than 1% of the
equity securities of a company any of the securities of which are
registered under Sections 11(b) or 11(g) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act").
(ii) Notwithstanding anything contained herein to
the contrary, the Executive shall not be bound by the non-
competition covenant provided in Section 8(a)(i) in the event
that, following a Change of Control (as defined in Section 4 of
the MCA), either: (A) the Executive is terminated without Cause
pursuant to Section 5(a) of the MCA or (B) the Executive
terminates her employment for Good Reason pursuant to Section
5(b) of the MCA.
(b) Non-Disclosure. During the term of this Agreement
--------------
and thereafter, the Executive shall not, without the written
consent of the Board or a person authorized thereby, disclose or
use (except in the course of his employment hereunder and in
furtherance of the business of the Company or any subsidiaries or
affiliates thereof) any confidential information or proprietary
data of the Company or any of its subsidiaries or affiliates
thereof, including, without limitation, customer lists, cost
information or pricing information, except where such
confidential information or proprietary data becomes generally
known at the time of disclosure
(other than as a result of the Executive's wrongful disclosure)
or where the Executive is required by law to so disclose.
(c) Solicitation for Employment. While she is
---------------------------
receiving payments from the Company under this Agreement or under
the MCA, and for a period of six months thereafter, the Executive
will not, directly or indirectly, employ, solicit for employment,
or advise or recommend to any other person that they employ or
solicit for employment, any person employed at the time by the
Company or any of its subsidiaries for the purpose of competing
with the Company in such manner as is described in Subsection (a)
of this Section 8.
9. Successor.
---------
The Company shall 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 assume expressly 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 successor had taken place. As used
in this Agreement, "Company" shall mean the company as
hereinbefore defined and any successor to its business and/or
assets as aforesaid which assumes and agrees to perform this
Agreement by operation of law, or otherwise.
10. Entire Agreement.
----------------
This Agreement contains the entire understanding of the
Company and the Executive with respect to the subject matter
hereof.
11. Arbitration.
-----------
Any dispute or controversy between the parties relating to
this Agreement shall be settled by binding arbitration in the
City of Manchester, State of New Hampshire, pursuant to the
governing rules of the American Arbitration Association and shall
be subject to the provisions of
New Hampshire Revised Statutes Annotated Chapter 542. Judgment
upon the award may be entered in any court of competent jurisdiction.
12. Assignability.
-------------
This Agreement is binding on and is for the benefit of the
parties hereto and their respective successors, heirs, executors,
administrators and other legal representatives. Neither this
Agreement nor any right or obligation hereunder may be assigned
by the Company or by the Executive without the other party's
prior written consent.
13. Withholding.
-----------
The Company may withhold from any amounts payable under this
Agreement such Federal, state or local taxes as shall be
permitted to be withheld pursuant to any applicable law or
regulation. The Company may withhold such other amounts as may
be permitted by law.
14. Amendment; Waiver.
-----------------
This Agreement may be amended only by an instrument in
writing signed by the parties hereto, and any provision hereof
may be waived only by an instrument in writing signed by the
party or parties against whom or which enforcement of such waiver
is sought. The failure of either party hereto at any time to
require the performance by the other party hereto of any
provision hereof shall in no way affect the full right to require
such performance at any time thereafter, nor shall the waiver by
either party hereto of a breach of any provision hereof be taken
or held to be a waiver of any succeeding breach of such provision
or a waiver of the provision itself or a waiver of any other
provision of this Agreement.
15. Notices.
-------
All notices and other communications hereunder shall be in
writing and shall be given by hand delivery to the other party or
by registered or certified mail, return receipt requested,
postage prepaid, addressed as follows:
If to the Executive:
Xxxxxxxx X. Xxxxxxxx
0 Xxxxxxx Xxxx
Xxxxxxx, XX 00000
If to the Company:
Xxxxxx X. Xxxxxxxx
President and CEO
EnergyNorth, Inc.
0000 Xxx Xxxxxx
X.X. Xxx 000
Xxxxxxxxxx, XX 00000
Copy:
Xxxxxxx Xxxxxxx, Esquire
McLane, Graf, Xxxxxxxxx & Middleton
000 Xxx Xxxxxx
X.X. Xxx 000
Xxxxxxxxxx, XX 00000
or to such other address as either party shall have
furnished to the other in writing in accordance herewith. Notice
and communications shall be effective when actually received by
the addressee.
16. Validity.
--------
The invalidity or unenforceability of any provision or
provisions of this Agreement shall not affect the validity or
enforceability of any other provision of this Agreement, which
shall remain in full force and effect, nor shall the invalidity
or unenforceability of a portion of any provision of this
Agreement affect the validity or enforceability of the balance of
such provision. If any provision of this Agreement, or portion
thereof is so broad, in scope or duration, as to be
unenforceable, such provision or portion thereof shall be
interpreted to be only so broad as is enforceable.
17. Beneficiary.
-----------
The Executive hereby designates as her beneficiary under
this Agreement Xxxxx X. Xxxxxxx, provided that the Executive may
change her beneficiary, or provide for alternate beneficiaries,
at any time by notifying the Company in writing of such change,
and no consent shall be required from the beneficiary or from the
Company.
18. Independent Covenants.
---------------------
The obligations of the Executive set forth in paragraph 8
represent independent covenants by which the Executive is and
will remain bound notwithstanding any breach by the Company, and
shall survive the termination of this Agreement.
19. Applicable Law.
--------------
This Agreement shall be governed by and construed in
accordance with the substantive internal law and not the conflict
of law provisions of the State of New Hampshire.
IN WITNESS WHEREOF, the parties hereto have duly executed
this Agreement as of the date first mentioned above.
ENERGYNORTH, INC.
BY:/s/ Xxxxxx X. Xxxxx
-------------------------------
XXXXXX X. XXXXX
Chairman - Board of Directors
/s/ Xxxxxxxx. X. Xxxxxxxx
-------------------------------
XXXXXXXX X. XXXXXXXX
