FIRST AMENDMENT TO EMPLOYMENT AGREEMENT
Exhibit 10. 27
FIRST AMENDMENT
TO EMPLOYMENT AGREEMENT
TO EMPLOYMENT AGREEMENT
THIS FIRST AMENDMENT TO EMPLOYMENT AGREEMENT (the “Amendment”) is made and entered into as of
this 31st day of December, 2008, by and between ENERGY WEST, INCORPORATED (the
“Company”), a Montana corporation, and XXXXX X. XXXXXXX (the “Executive”).
RECITALS:
| A. | The Company and the Executive are parties to an Employment Agreement dated as
of November 16, 2007 (the “Original Agreement”). |
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| B. | In order to ensure compliance with Section 409A of the Internal Revenue Code of
1986, as amended, and the U.S. Department of Treasury regulations and other
interpretive guidance issued thereunder, the Company and the Executive desire to amend
the Original Agreement as set forth in this Amendment. |
ACCORDINGLY, in consideration of the promises hereinafter set forth in this Amendment, the
parties agree as follows:
1. Changes to Section 3 of the Original Agreement. The Company and the Executive
hereby agree that Section 3 of the Original Agreement is hereby amended as follows:
| (a) | The following is added in its entirety as the last sentence of
Section 3(b) of the Original Agreement: |
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To ensure compliance with Section 409A of the Internal Revenue Code of 1986,
as amended (the “Code”), and the U.S. Department of Treasury regulations and
other interpretive guidance issued thereunder, each as in effect from time
to time (collectively, “Section 409A”), any bonus payment payable under this
Section 3(b) shall be paid on a date no later than the later of the
fifteenth day of the third month following the end of the Executive’s or the
Company’s taxable year in which the amount was earned and accrued. |
| (b) | The following is added in its entirety as Section 3(g) of the
Original Agreement: |
To ensure compliance with Section 409A, no (i) payment of Annual Base Salary
under Section 3(a) of this Agreement, (ii) reimbursed expenses payable under
Section 3(e) of this Agreement or (iii) fringe
benefits or reimbursements payable under Section 3(f) of this Agreement that
are taxable to the Executive shall be made later than March 15 of the
calendar year following the calendar year in which the amount was earned and
accrued.
2. Changes to Section 5 of the Original Agreement. The Company and the Executive
hereby agree that Section 5(e) of the Original Agreement is hereby added in its entirety as
follows:
| 5(e) | Timing of Payments. Notwithstanding the foregoing, to
ensure compliance with Section 409A, the Company shall pay: |
| (i) | any amount payable under Sections 5(a)(A), (B)
and (C) (collectively, the “Accrued Base Pay Amount”) by no later than
March 15 of the calendar year following the year of Termination; |
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| (ii) | to the extent that any continued payments or
reimbursements of benefit continuation or conversion under Section 5(a)
above are deemed to constitute taxable compensation to the Executive,
any such payment or reimbursement due to the Executive shall be paid to
the Executive on or before the last day of the Executive’s taxable year
following the taxable year in which the related expense was incurred.
The amount of any such payments eligible for reimbursement in one year
shall not affect the payments or expenses that are eligible for payment
or reimbursement in any other taxable year, and the Executive’s right
to such payments or reimbursements shall not be subject to liquidation
or exchange for any other benefit. |
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| (iii) | provided that the Executive has executed and
delivered the release and the covenant not to xxx (as described in
Section 11(a)), all amounts payable under Section 5(b) in a lump sum
cash payment by no later than 75 days after the date of termination
under Section 5(b). |
3. Changes to Section 11(a) of the Original Agreement. The Company and the Executive
hereby agree that Section 11(a) of the Original Agreement is hereby deleted from the Original
Agreement in its entirety and is replaced by the following new Section 11(a):
| (a) | Release and Covenant Not to Xxx. Notwithstanding anything contained in
this Agreement to the contrary, the Executive shall not be entitled to receive any
of the severance compensation described in Section 5(b) of this Agreement unless the
Executive at the time of any employment termination for which such severance
compensation would be due and owing, executes a release and a covenant not to xxx
upon terms and conditions acceptable to the Company. Notwithstanding anything to the contrary in this Agreement, the Company shall be
under no obligation to provide the severance compensation described in Section 5(b)
of this Agreement unless the Executive shall have executed the release and the
covenant not to xxx (and the applicable revocation period shall have expired) within
sixty-five (65) days following the date of the Executive’s termination of
employment.
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4. Addition of New Section 12 to the Original Agreement. The Company and the
Executive hereby agree that Section 12 of the Original Agreement is hereby added in its entirety as
follows:
12.
Section 409A.
| (a) | To the extent applicable, this Agreement
shall be interpreted in accordance with Section 409A. |
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| (b) | If the Executive is a “specified employee”
(within the meaning of Treasury Regulation Section 1.409A-1(i)), as
determined by the Company in accordance with Section 409A, as of the
date of the Executive’s separation from service (within the meaning
of Treasury Regulation Section 1.409A-1(h)), to the extent that any
payments or benefits under this Agreement are subject to Section
409A and the delayed payment or distribution of all or any portion
of such amounts to which the Executive is entitled under this
Agreement is required in order to avoid a prohibited distribution
under Section 409A(a)(2)(B)(i) of the Code, then such portion
deferred under this Section 12(b) shall be paid or distributed
(without interest) to the Executive in a lump sum on the earlier of
(i) the date that is six (6) months following termination of the
Executive’s employment, (ii) a date that is no later than thirty
(30) days after the date of the Executive’s death or (iii) the
earliest date as is permitted under Section 409A. For purposes of
clarity, the six (6) month delay shall not apply in the case of
severance pay contemplated by Treasury Regulation Section
1.409A-1(b)(9)(iii) to the extent of the limits set forth therein.
Any remaining payments due under this Agreement shall be paid as
otherwise provided herein. |
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| (c) | To the maximum extent permitted by applicable
law, the amounts payable to the Executive under this Agreement shall be
made in reliance upon Treasury Regulation Section 1.409A-1(b)(9) (with
respect to separation pay plans) or Treasury Regulation Section
1.409A-1(b)(4) (with respect to short-term deferrals). |
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| (d) | As provided in Internal Revenue Notice
2007-86, notwithstanding any other provision of this Agreement, with
respect to an election or amendment to change a time and form of
payment under this Agreement that is subject to Section 409A made
on or after January 1, 2008 and on or before December 31, 2008,
the election or amendment may apply only to amounts that would not
otherwise be payable in 2008 and may not cause an amount to be
paid in 2008 that would not otherwise be payable in 2008. |
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5. Full Force and Effect. Except to the extent specifically modified in this
Amendment, each and every provision of the Original Agreement remains in full force and effect.
6. Miscellaneous. This Amendment shall be governed by and construed in accordance
with the substantive laws of the State of Ohio. The parties intend to and do hereby confer
jurisdiction upon the courts of any jurisdiction within the State of Ohio to determine any dispute
arising out of or related to this Amendment, including the enforcement and the breach hereof. This
Amendment may be executed simultaneously in any number of counterparts, each of which shall be
deemed an original but all of which together shall constitute one and the same instrument. In the
event of any conflict between the original terms of the Original Agreement and this Amendment, the
terms of this Amendment shall prevail.
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IN WITNESS WHEREOF, the Executive and, pursuant to due authorization from its Board of
Directors, the Company have caused this Amendment to be executed as of the day and year first above
written.
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EXECUTIVE |
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| /s/ Xxxxx X. Xxxxxxx | ||||
| XXXXX X. XXXXXXX | ||||
| ENERGY WEST, INCORPORATED |
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| By: | Xxxxxx X. Xxxxx | |||
| Its: Chief Financial Officer | ||||
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