EXHIBIT 10(t)
EMPLOYMENT AGREEMENT
between
AQUARION COMPANY
and
XXXXX X. XXXXX
dated as of October 1, 1995
THIS AGREEMENT, made effective as of October 1, 1995 by and
between AQUARION COMPANY (the "Company"), a Delaware corporation, and
XXXXX X. XXXXX, of 0000 Xxxxx Xxxxx Xxxx, Xxxxx Xxxxxxx, Xxxxx
Xxxxxxxx 00000 (the "Executive"),
W I T N E S S E T H T H A T :
WHEREAS:
i. The Executive is a principal officer of the Company and
an integral part of its senior management who participates in the
decision making process relative to short and long term planning and
policy for the Company;
ii. The Board of Directors of the Company, at its meeting
on September 1, 1995, determined that it would be in the best
interests of the Company and its shareholders to assure continuity in
the management of the Company's administration and operations by
entering into an employment agreement to retain the services of the
Executive on an extended basis; and
iii. The Executive is willing to continue to serve the
Company as a member of its senior management on the terms and
conditions set forth herein;
NOW, THEREFORE, it is hereby agreed by and between the parties
hereto as follows:
1. Employment. The Company agrees to continue the Executive in
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its employ, and the Executive agrees to remain in the employ of the
Company, for the period stated in Paragraph 3 hereof and upon the
other terms and conditions herein provided.
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2. Position and Responsibilities. During the period of his
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employment hereunder, the Executive agrees to serve as President of
Industrial and Environmental Analysts, Inc. ("IEA") for the period for
which he is and shall from time to time be elected, and to be
responsible for the general management of the affairs of IEA,
reporting directly to the Chief Executive Officer of the Company, with
such duties and responsibilities, consistent with such position as the
Board of Directors or the Chief Executive Officer of the Company may
from time to time determine. During said period, the Executive also
agrees to serve, if elected, as an officer and director of the Company
or any other subsidiary or affiliate of the Company.
3. Term and Duties.
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(a) Term of Employment. The term of the Executive's
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employment under this Agreement shall be deemed to have commenced as
of the date first above written and shall continue for a period of
twenty-four full calendar months thereafter, subject to extension as
hereinafter provided. On the first day of each month following the
date first above written, the term of the Executive's employment under
this Agreement shall be automatically extended unless prior thereto
the Company shall deliver to the Executive or the Executive shall
deliver to the Company written notice that such term of employment
shall not be extended, in which case such term shall end at the
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expiration of the then existing term of employment under this
Agreement, including any previous extensions, and shall not be further
extended except by agreement of the Company and the Executive. Any
such automatic extension shall be for one additional full calendar
month (for a total term upon such extension of twenty-four full
calendar months), unless the Executive will attain age 65 prior to
completion of twenty-four full calendar months following the extension
date, in which case the term of the Executive's employment under this
Agreement shall terminate on the last day of the month in which the
Executive attains age 65.
(b) Duties. During the period of employment hereunder and
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except for illness or incapacity and reasonable vacation periods
(which shall not be less than 22 days in any calendar year), the
Executive's business time, attention, skill and efforts shall be
exclusively devoted to the business and affairs of the Company and its
subsidiaries; provided, however, that nothing in this Agreement shall
preclude the Executive from devoting time during reasonable periods
required for:
(i) serving as an officer, director or member of a committee of
any company or organization involving no conflict of
interest with the Company or any of its subsidiaries or
affiliates,
(ii) delivering lectures and fulfilling speaking engagements, and
(iii) engaging in charitable and community activities, provided
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that such activities do not materially affect or interfere
with the performance of the Executive's obligations to the
Company.
4. Compensation.
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(a) For all services rendered by the Executive in any
capacity during employment under this Agreement, including services as
an executive, officer, director, or member of any committee of the
Company or any subsidiary or affiliate thereof, the Company shall pay
the Executive a base salary at the rate of not less than $150,000 per
year, subject to such periodic increases as the Board shall deem
appropriate in accordance with the Company's customary procedures and
practices regarding the salaries of senior management employees. Such
salary shall be payable in accordance with the customary payroll
practices of the Company, but in no event less frequently than
monthly. Such periodic increases in salary, once granted, shall not
be subject to revocation.
(b) Executive shall be entitled to participate, at the
discretion of the Board, in any Company or IEA incentive or bonus plan
covering some or all of their executive officers that is in effect
during the period of his employment hereunder and to receive benefits
thereunder on a basis consistent with the overall administration and
intent of any such plan and with past practice, if any, under such
plan.
(c) Nothing in this Agreement shall preclude or affect any
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rights or benefits that may now or hereafter be provided for the
Executive or for which the Executive may be or become eligible under
any other form of compensation or employee benefit plan now existing
or that may hereafter be adopted or awarded by IEA or the Company;
provided, however, that, subject to Paragraph 7(c)(iv), nothing in
this Agreement shall preclude the Company or IEA from amending or
terminating any such plan or program, on the condition that such
amendment or termination is applicable to all senior management
employees generally.
5. Business Expenses. The Company shall pay or reimburse the
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Executive for all reasonable travel and other expenses incurred in
connection with the performance of the Executive's duties under this
Agreement in accordance with such procedures as the Company may from
time to time establish. The Company further agrees to furnish the
Executive with a private office and a private secretary and such other
assistance and accommodations, including an automobile and appropriate
club membership, as shall be suitable to the character of the
Executive's position with the Company and adequate for the performance
of the Executive's duties under this Agreement.
6. Additional Benefits. Nothing in this Agreement shall affect
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the Executive's eligibility to participate in all group health,
dental, hospitalization, life, travel or accident or other insurance
plans or programs and all other perquisites, fringe benefits or
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retirement plans or additional compensation, including termination pay
programs, which the Company may hereafter, in its sole and absolute
discretion, elect to make available to its senior management employees
generally, and the Executive shall be eligible to receive, during the
period of employment under this Agreement, all benefits and emoluments
for which key employees are eligible under every such plan, program,
perquisite or arrangement to the extent permissible under the general
terms and provisions thereof.
7. Termination of Employment. Notwithstanding any other
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provision of this Agreement, the Executive's employment under this
Agreement may be terminated:
(a) by the Company, in the event of the Executive's
serious, willful misconduct in respect of the Executive's duties under
this Agreement, including conviction for a felony or perpetration of a
common law fraud which has resulted or is likely to result in material
economic damage to the Company or any of its subsidiaries, by written
notice to the Executive, specifying the event relied upon for such
termination;
(b) by either the Company or the Executive, if the
executive accepts employment or a consulting position with another
company; or
(c) by the Executive, in the event of any (i) material
change by the Company of the Executive's functions, duties or
responsibilities which change would cause the Executive's position
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with the Company to become of less dignity, responsibility, importance
or scope from the position and attributes thereof described in
Paragraph 2 above, (ii) assignment or reassignment by the Company or
by one of its subsidiaries of the Executive to another place of
employment outside of 35 miles from Cary, North Carolina, (iii)
liquidation, dissolution, consolidation, or acquisition or merger of
the Company, or transfer of all or substantially all of its assets
other than a transaction in which a successor corporation with a net
worth at least equal to that of the Company assumes this Agreement and
all obligations and undertakings of the Company hereunder, or (iv)
reduction in the Executive's total compensation and benefits, as
specified in Paragraph 4 above and as currently provided, or other
material breach of this Agreement by the Company or any of its
subsidiaries, by thirty (30) days written notice to the Company,
specifying the event relied upon for such termination and given within
180 days after such event.
8. Payments Upon Termination of Employment. In the event of
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any termination by the Executive pursuant to Paragraph 7(c) above, or
in the event the Executive's employment under this Agreement is
terminated by the Company for any reason other than one of those
specified in Paragraphs 7(a) or 7(b) above, the Company shall, as
liquidated damages or severance pay, or both, promptly pay to the
Executive and provide the Executive and the dependents, beneficiaries
and estate of the Executive as follows:
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(a) The Company shall pay the Executive, at his option,
either as a lump sum or in equal monthly installments over the
unexpired portion of the term of employment provided for in Paragraph
3(a) above, a cash amount equal to the present value of the excess of
(i) the salary provided in Paragraph 4(a) above, including the
increases therein provided, for the unexpired portion of the term of
employment provided for in Paragraph 3(a) above (commencing with the
month in which termination shall have occurred) less the amounts, if
any, the Executive would have paid in cash in respect of employee
benefits provided for in Paragraph 4(c) above if the Executive were
still employed, over (ii) the amounts, if any, paid to the Executive
pursuant to any severance or termination pay program or arrangement of
the Company or any of its subsidiaries, provided, however, that in no
event shall the amount paid hereunder exceed 1.5 times the Executive's
annual salary.
(b) For purposes of calculating the lump sum cash payments
provided by Paragraphs 8(a) above, present value shall be determined
by using a discount factor equal to one percentage point below the
prime rate as published in The Wall Street Journal as of the date on
which termination shall have occurred.
(c) For a period of 24 months (commencing with the month in
which termination shall have occurred), the Executive shall continue
to be entitled to all employee benefits provided for in Paragraph 4(c)
above as may be in effect on the date of termination, as if the
Executive were still employed during such period under this Agreement,
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with benefits based upon the compensation used to calculate the
payments provided by Paragraph 8(a) above, and if and to the extent
that such benefits shall not be payable or provided under any such
plan, the Company shall pay or provide such benefits on an individual
basis. The medical, dental, health and welfare benefits provided for
in Paragraph 4(c) above, in accordance with this Paragraph 8(c) shall
be secondary to any comparable benefits provided by another employer
provided that an appropriate refund is made of any reduction in the
amount paid pursuant to Paragraph 8(a)(i) which had assumed that such
benefits would be primary.
9. Source of Payments; Interest. All payments provided for in
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Paragraphs 4, 5, 6 and 8 above shall be paid in cash from the general
funds of the Company. Any payments not made within thirty (30) days
after termination or such time as they may otherwise be due hereunder
shall bear interest at the interest rate used to establish the
discount factor provided for in Paragraph 8(b). The Company shall not
be required to establish a special or separate fund or other
segregation of assets to assure such payments.
10. Litigation Expenses.
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(a) In the event of any litigation or other proceeding
between the Company and the Executive with respect to the subject
matter of this Agreement and the enforcement of rights hereunder, the
Company shall reimburse the Executive for all reasonable costs and
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expenses relating to such litigation or other proceeding, including
reasonable attorneys' fees and expenses, provided that such litigation
or proceeding results in any:
(i) settlement requiring the Company to make a payment to the
Executive, or
(ii) judgement or order in favor of the Executive enforcing any
provision of this Agreement or awarding any payment or other
consideration to the Executive, regardless of whether such
judgement or order is subsequently reversed on appeal or in
a collateral proceeding.
In no event shall the Executive be required to reimburse the Company
for any of the costs and expenses relating to such litigation or other
proceeding. The obligation of the Company under this Paragraph 10
shall survive the termination for any reason of this Agreement
(whether such termination is by the Company, by the Executive, upon
the expiration of this Agreement or otherwise).
11. Income Tax Withholding. The Company may withhold from any
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payments made under this Agreement all federal, state, city or other
taxes as shall be required pursuant to any law or governmental
regulation or ruling.
12. Non-Disclosure of Proprietary Information. The Executive
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will gain, with respect to the Company and its affiliates, detailed
knowledge of all affairs, trade secrets, discoveries, plans,
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development work in process, cost information, outstanding bid and bid
proposal information, customer requirements, contractual provisions,
employee capabilities and proposed marketing initiatives, other
confidential information and the like (the "Proprietary Information")
in the course of the Executive's employment hereunder and under any
prior employment agreement with the Company or an affiliate, and the
Executive will necessarily continue to have the fullest knowledge of
such matters. Disclosure to or utilization of such knowledge and
Proprietary Information to any person, firm, business, organization,
corporation, agency or other entity, whether or not engaged in any
line of business competing in any respect with the business of the
Company as now constituted, or as the same may be developed will cause
irreparable injury and damage to the business of the Company. The
Executive covenants and agrees that he will not at any time, during
and after the period of his employment hereunder, except as may be
required by law, disclose any of the Proprietary Information to, or
utilize such information on behalf of, any person, firm, business,
organization, corporation, agency or other entity (other than an
employee or agent of the Company entitled to receive the same). The
Executive's obligations under this Paragraph 12 shall not apply to
information which is or becomes part of the public domain through no
fault of the Executive. Further, upon termination of his employment
hereunder, the Executive agrees that he will deliver to the Company,
or any affiliated company designated by the Company, any and all
records, files, lists or other documents containing information within
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the scope of the foregoing description, including, without limitation,
the Executive's records of contracts with customers and potential
customers, and all copies of the same, and shall not retain any copies
of Proprietary Information.
13. Executive's Inventions. The Executive will promptly submit
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to the Company written disclosures of all inventions, improvements and
discoveries relating to the business, whether or not patentable
(hereinafter "Inventions") which are made or conceived by him, along
or jointly with others, while in the Company's or IEA's employ. Title
to all such Inventions that shall be within the existing or
contemplated scope of the Company's or IEA's business at the time such
Inventions are made or conceived or which result from or are suggested
by any work he may do for or on behalf of the Company or IEA, together
with such patent, patents or other legal protections as may be
obtained thereon in the United States of America and all foreign
countries, shall belong to the Company. The Executive will assign
such title to the Company and, upon the request of the Company and
after the Executive's termination for any reason, execute all proper
papers for use in applying for, obtaining, maintaining and enforcing
such patents or other legal protections as the Company may desire and
will execute and deliver all proper assignments thereof, when so
requested, without further remuneration but at the expense of the Company.
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14. Non-Competition.
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(a) The Executive covenants and agrees that, for a period ending
two (2) years from the Effective Date or a period ending one (1) year
after the termination of this Agreement, whichever is later, he will
not engage in any business competitive in any respect with the
business of the Company or IEA, their successors or assigns, as such
business is now constituted or as the same may be developed during the
Executive's employment in the geographic area designated in Section
14(c).
(b) The Executive shall be deemed to be engaged in such business
directly or indirectly if he is a sole proprietor or an employee,
officer, director, trustee, agent or partner of, or a consultant or
advisor to or for, a person, firm, corporation, association, trust or
other entity (other than the Company or IEA) which is engaged in such
business. This restriction shall not apply to the ownership of five
percent (5%) or less of the total outstanding issue of any class of
securities listed in the over-the-counter market or a national
securities exchange.
(c) Except as provided below, the geographic scope of the
Executive's covenant not to compete shall be:
(i) the states of North Carolina, Florida, Connecticut, New
Jersey, Massachusetts, Vermont and Illinois; and
(ii) the following states: Indiana, Ohio, Michigan,
Wisconsin, New York, Pennsylvania, Xxxxx Xxxxxxxx, Xxxxxxxx,
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Xxxxxxx, Xxxxxxx; and
(iii) any state in the United States of America in which
the Executive is rendering services for the Company or IEA at the
time of termination of employment.
(d) For the term set forth in Section 14(a) above, the Executive
covenants and agrees that, he will not, directly or indirectly,
solicit any person who is employed by the Company or any subsidiary at
the time of termination of the Executive's employment or within the
preceding six-month period to leave the employ of the Company or any
subsidiary or to render services to any business which competes with
the business of the Company or any subsidiary.
(e) The Executive agrees that the remedy at law for any breach
of the covenant contained in this Section 14 will be inadequate and
that any breach would cause such immediate and permanent damages as
would be impossible to ascertain, and, therefore, the Executive agrees
and consents that in the event of any breach of any provision of such
covenant by him, in addition to any and all legal and equitable
remedies available to the Company, its successors and assigns for such
breach, including a recovery of damages, the Company, its successors
and assigns shall be entitled to obtain preliminary injunctive relief
without the necessity of proving actual damages by reason of such
breach, and, to the extent permitted by applicable statutes and rules
of procedure, a temporary restraining order (or similar procedural
device) may be granted immediately upon the commencement of such
action.
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15. Entire Understanding. This Agreement contains the entire
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understanding between the Company and the Executive with respect to
the subject matter hereof and supersedes any prior employment
agreement between the Company and the Executive, except that this
Agreement shall not affect or operate to reduce any benefit or
compensation inuring to the Executive of a kind elsewhere provided and
not expressly provided in this Agreement.
16. Severability. If, for any reason, any one or more of the
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provisions or part of a provision contained in this Agreement shall be
held to be invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any other
provision or part of a provision of this Agreement not held so
invalid, illegal or unenforceable, and each other provision or part of
a provision shall to the full extent consistent with law continue in
full force and effect. If this Agreement is held invalid or cannot be
enforced, then to the full extent permitted by law any prior agreement
between the Company and the Executive shall be deemed reinstated as if
this Agreement had not been executed.
17. Consolidation, Merger, or Sale of Assets. Nothing in this
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Agreement shall preclude the Company from consolidating or merging
into or with, or transferring all or substantially all of its assets
to, another corporation or acquiring entity which assumes this
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Agreement and all obligations and undertakings of the Company
hereunder. Upon such a consolidation, merger or transfer of assets
and assumption, the term, "the Company", as used herein shall mean
such other corporation or acquiring entity and this Agreement shall
continue in full force and effect.
18. Notices. All notices, requests, demands and other
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communications required or permitted hereunder shall be given in
writing and shall be deemed to have been duly given if delivered or
mailed, postage prepaid, first class as follows:
(a) to the company:
Aquarion Company
000 Xxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxx 00000
Attention: Secretary
(b) to the Executive:
Xxxxx X. Xxxxx
0000 Xxxxx Xxxxx Xxxx
Xxxxx Xxxxxxx, Xxxxx Xxxxxxxx 00000
or to such other address as either party shall have previously
specified in writing to the other.
19. No Attachment. Except as required by law, no right to
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receive payments under this Agreement shall be subject to
anticipation, commutation, alienation, sale, assignment, encumbrances,
charge, pledge, or hypothecation or to execution, attachment, levy, or
similar process or assignment by operation of law, and any attempt,
voluntary or involuntary, to effect any such action shall be null,
void and of no effect.
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20. Binding Agreement. This Agreement shall be binding upon,
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and shall inure to the benefit of, the Executive and the Company and
their respective permitted successors and assigns.
21. Modification and Waiver. This Agreement may not be modified
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or amended except by an instrument in writing signed by the parties
hereto. No term or condition of this Agreement shall be deemed to
have been waived, nor shall there be any estoppel against the
enforcement of any provision of this Agreement except by written
instrument signed by the party charged with such waiver or estoppel.
No such written waiver shall be deemed a continuing waiver unless
specifically stated therein, and each such waiver shall operate only
as to the specific term or condition waived and shall not constitute a
waiver of such term or condition for the future or as to any act other
than that specifically waived.
22. Headings of No Effect. The paragraph headings contained in
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this Agreement are included solely for convenience of reference and
shall not in any way affect the meaning or interpretation of any of
the provisions of this Agreement.
23. Governing Law. This Agreement and its validity,
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interpretation, performance, and enforcement shall be governed by the
laws of the State of Connecticut.
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IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed and its seal to be affixed hereunto by its officers thereunto
duly authorized, and the Executive has signed this Agreement, all as
of the date first above written.
AQUARION COMPANY
ATTEST:
By:
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Secretary Xxxxxxx X. Xxxxxxx
Its Chief Executive Officer
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Xxxxx X. Xxxxx
