Exhibit 10(bb)
AMENDMENT NO.1
TO
EMPLOYMENT AGREEMENT
This Amendment dated as of January 1, 1999 to that certain
Employment Agreement entered into as of September 30, 1991 by and between Fall
River Gas Company, a Massachusetts corporation with an office at 000 Xxxxx Xxxx
Xxxxxx, Xxxx Xxxxx, Xxxxxxxxxxxxx 00000 (hereinafter called the "Company") and
Xxxxx X. Xxxxxx of Cumberland, Rhode Island (hereinafter called the
"Executive").
RECITALS
Whereas, the Executive and the Company are parties to an
employment agreement entered into as of September 30, 1991 (the "Employment
Agreement"); and
Whereas, the Company desires to assure the continued service of
Executive, and Executive is desirous of committing himself to continued service
to the Company; and
Whereas, the Executive and the Company desire to amend certain
provisions of the Employment Agreement;
AGREEMENTS
NOW, THEREFORE, for valuable consideration, the receipt and
sufficiency of which is acknowledged by the Company and the Executive, the
Company and the Executive hereby agree as follows:
1. Section 7 shall be amended by the addition of a new Section
7(d) which shall read as follows:
"(d) CERTAIN ADDITIONAL PAYMENTS BY THE COMPANY. The Company
shall pay to the Executive, on a monthly basis, an amount (the "Medicare Tax
Reimbursement") equal to the hospital insurance tax (the "Medicare Tax") imposed
upon the Executive pursuant to Section 3101(b) of the Internal Revenue Code of
1986, as amended (the "Code") with respect to all wages received by the
Executive from the Company. In addition, the Company shall pay the Executive an
additional payment (the "Gross-Up Payment") in an amount such that after payment
by the Executive of all taxes imposed upon the Medicare Tax Reimbursements and
the Gross-Up Payment, the Executive retains from the Medicare Tax Reimbursements
and the Gross-Up Payment an amount equal to the Medicare Tax imposed upon the
Executive for the tax year."
2. Section 7 shall be amended by the addition of a new Section
7(e), which shall read as follows:
"(e) EXCESS PENSION BENEFIT.
(i) COMMENCEMENT OF EXCESS PENSION BENEFIT AT
RETIREMENT. The Executive shall be entitled to receive an excess pension benefit
(as determined pursuant to Section 7(e)(iii) hereof) (the "Excess Pension
Benefit"), commencing as of the date the Executive terminates employment and
first becomes eligible to receive benefits under the Pension Plan for Salaried
and Non-Union Hourly Employees of Fall River Gas Company ("Pension Plan") (the
"Commencement Date"), even if such Executive elects not to commence receiving
such Pension Plan benefits at that time.
(ii) FORM OF PAYMENT. The Executive will receive his
Excess Pension Benefit hereunder in the same form as the Executive receives or
has elected to receive, as the case may be, his retirement benefit under the
Pension Plan. The company shall have the right to deduct from all benefits
accrued and/or from payments made under this Section 7(e) any taxes required by
law to be paid or withheld.
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(iii) AMOUNT OF BENEFIT. The Excess Pension Benefit
shall be an amount equal to the following:
(A) the Executive's annual retirement benefit
calculated under Section V of the Pension Plan,
and payable in accordance with Section VI of the
Pension Plan, notwithstanding any restrictions
imposed by Sections XXI and XXII of the Pension
Plan and notwithstanding the limitations provided
in Section 415(b), 415(e), and/or 401(a)(17) of
the code, less
(B) the actual amount of annual retirement benefit
calculated under Section V of the Pension Plan,
and payable to the Executive in accordance with
Section VI of the Pension Plan after application
of any restrictions imposed by Sections XXI and
XXII of the Pension Plan and the limitations
provided in Sections 415(b), 415(e), and/or
401(a)(17) of the Code.
(iv) ACCRUED EXCESS PENSION BENEFIT. The Executive's
accrued Excess Pension Benefit (the "Accrued Excess Pension Benefit") on any
date prior to retirement shall equal the amount determined under Section 7(e)(i)
hereof based upon his "Compensation" (as defined in Section I of the Pension
Plan) and "Year of Service" (as defined in Section I of the Pension Plan as of
such date.
(v) EXCESS PENSION PRE-RETIREMENT DEATH BENEFIT. If the
Executive dies prior to the Commencement Date, any Accrued Excess Pension
Benefit shall be paid to the Executive's surviving spouse or, if there is no
surviving spouse, to the beneficiary, if any, designated pursuant to the terms
of the Pension Plan by the Executive to receive the Executive's retirement
benefits under the Pension Plan (the "Designated Beneficiary") (and if no such
beneficiary is designated, to the Executive's estate). Such benefits shall be
paid at the same time and in the same form as the death benefit provided under
the Pension Plan.
(vi) DEATH ON OR AFTER RETIREMENT. If the Executive
dies on or after the commencement Date, the Executive's surviving spouse or, if
there is no surviving spouse, the Designated Beneficiary (and if there is no
Designated Beneficiary, the Executive's estate) shall receive the Excess Pension
Benefit that the Executive would have received. Such benefit shall be paid at
the same time and in the same form as the payments the Executive would have
received.
(vii) SUSPENSION OF EXCESS PENSION BENEFIT. The payment
of an Excess Pension Benefit otherwise due on behalf of the Executive shall be
suspended for any calendar month in which his Pension Benefit under the Pension
Plan is suspended, provided that payment of an Excess Pension Benefit which has
been so suspended shall commence or resume when the Pension Benefits under the
Pension Plan resume. Notice of suspension of payment of any Excess Pension
Benefit shall be given to the Executive and such suspension of payment shall be
governed by procedures established by the administrator of the Pension Plan.
3. Section 7 shall be amended by the addition of a new Section
7(f), which shall read as follows:
"(f) CONTINUATION OF WELFARE BENEFITS. For a period
commencing with the month in which termination of employment for other than
Cause (as defined in the Agreement) shall have occurred, and ending the later of
the date of the Executive's or the Executive's spouse's death, the Executive,
his spouse and any dependents shall continue to be entitled to receive all
health and dental care benefits under the company's welfare benefit plans
(within the meaning of Section 3(1) of the Employee Retirement Income Security
Act of 1974, as amended), at no cost to the Executive and at the same level that
the Executive, his spouse and his dependents were receiving or were entitled to
receive at the time of termination of employment (if and to the extent that such
benefits shall not
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be payable or provided under any Company plan, the Company shall pay or provide
equivalent benefits on an individual basis)."
4. Section 10 shall be deleted in its entirety, and in its place
shall be added the following:
"10. CHANGE IN CONTROL. If, and only if, the
Executive's employment is terminated following a Change in Control of the
Company (as that term is defined in the Severance Agreement between the
Executive and the Company, dated the 1st day of January, 1999 (the "Severance
Agreement")), the provisions in this Section shall be superceded by the terms of
the Severance Agreement and any other applicable Company plan, policy,
arrangement or agreement (other than this Agreement)."
5. Section 12 shall be deleted in its entirety.
6. A new Section 12 shall be added, which shall read as follows:
"12. SOURCE OF PAYMENTS. All payments provided for in
this Agreement shall be paid in cash from the general funds of the Company;
provided, however, such payments shall be reduced by the amount of any payments
made to the Executive or the Executive's dependents, beneficiaries, or estate
from any trust or special or separate fund established by the Company to assure
such payments. The Company shall not be required to establish a special or
separate fund or other segregation of assets to assure such payments, and, if
the company shall make any investments to aid it in meeting its obligations
hereunder, the Executive shall have no right, title, or interest whatsoever in
or to any such investments except as may otherwise be expressly provided in a
separate written instrument relating to such investments. Nothing contained in
this Agreement, and no action taken pursuant to its provisions, shall create or
be construed to create a trust of any kind or a fiduciary relationship between
the Company and the Executive or any other person. To the extent that any person
acquires a right to receive payments from the Company pursuant to this
Agreement, such right shall be no greater than the right of an unsecured
creditor of the Company."
All the provisions of the Agreement not specifically mentioned in
this First Amendment shall be considered modified to the extent necessary to be
consistent with the changes made in this First Amendment.
Date: ______________________ The Company
By __________________________
Its
The Executive
_____________________________
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