EMPLOYMENT AGREEMENT
EXHIBIT
10.39
THIS
AGREEMENT ( the “Agreement”)
is made as of the 1st
day
of July, 2005, between The United Illuminating Company, a Connecticut
Corporation (the “Company”) and Xxxxxx
X.
Xxxxxxx, (the “Executive”),
WITNESSETH
THAT
WHEREAS,
the Company desires to employ
the Executive as Assistant
Vice President Corporate Planning of the Company,
and the
Executive desires to be so employed by the Company;
NOW
THEREFORE, in consideration of the
foregoing and the respective covenants and agreements of the parties herein
contained, and the services to be rendered to the Company pursuant hereto,
the
parties hereby agree as follows:
(1) EMPLOYMENT;
TERM
(a) The
Company hereby agrees to employ the Executive, and the Executive hereby agrees
to serve the Company, at the pleasure of the Board of Directors of the Company
(the “Company Board”) and the Board of Directors of UIL Holdings Corporation
(the “UIL Board”), all upon the terms and conditions set forth
herein.
(b) The
term
of this Agreement shall be for a period commencing on the date hereof and ending
on the second anniversary of the date hereof, unless this Agreement is earlier
terminated as provided in Section 5 (the “Initial Term”). Unless the
Company has provided the Executive with at least ninety (90) days prior written
notice of its decision not to renew this Agreement after the Initial Term or
any
subsequent term, this Agreement shall be automatically renewed for a successive
one (1) year term (the Initial Term and any renewal term being referred to
as
the “Term”). For
purposes of this Agreement, a non-renewal at the election of the Company at
the
end of a Term shall not constitute a termination of this Agreement without
cause, but shall be governed by the provisions of Section 6(d). In no event
shall the Company give notice of a non-renewal from the time that an impending
Change in Control (as hereinafter defined) is announced through the date of
the
consummation of such Change in Control.
(2)
POSITION AND DUTIES
(a)
The Executive shall be employed by
the Company as its Assistant
Vice President Corporate Planning, or in such other equivalent or higher
position as the UIL Board may determine. The Executive shall:
(i)
accept such employment and perform
and discharge, faithfully, diligently and to the best of the Executive's
abilities, the duties and obligations of the Executive's office and such other
duties as may from time to time be assigned to the Executive by, or at the
direction of, the Company Board and UIL Board; and
(ii) devote
substantially
all of the Executive's working time and efforts to the business and affairs
of
the Company.
(b)
Prior to a Change in Control, in
the event that the Executive is named by the UIL Board to a position higher
in
rank or compensation than that applicable at the commencement of the Initial
Term, nothing in this Agreement shall obligate the Company to continue such
Executive in such higher position; and the Company shall not be deemed in
“Breach” of the Agreement (as defined in Section 5(d)) for failure to continue
the Executive in such higher position.
(3)
PLACE OF PERFORMANCE
In
his employment by the Company, the
Executive shall be based within a fifty (50)-mile radius of the current
executive offices of the Company in New Haven, Connecticut.
(4)
COMPENSATION
(a)
Base
Salary. During the Initial Term of the Executive's employment
hereunder, the Executive shall receive a base salary (“Base Salary”) at an
annual rate of One
Hundred and Thirty Nine Thousand ($139,000), payable in accordance with
the then customary payroll practices of the Company. The Executive's
performance and Base Salary shall be reviewed by the UIL Board at least
annually, and may be adjusted as a result of any such review.
(b)
Incentive
Compensation. During the Term of the Executive’s employment
hereunder, the Executive shall be eligible to be designated by the Board of
Directors of the Company (the “Company Board”), or by the UIL Board in the event
that the plan is a UIL plan, as a participant in each annual short-term
incentive compensation program, and any long-term incentive program, maintained
for management employees of the Company; provided, however, that entitlement
to
participation, and continued participation, in any long-term equity incentive
program shall be conditioned upon the Executive fully complying with any stock
ownership and retention guidelines from time to time established and promulgated
by the UIL Board.
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For
purposes of this Agreement, the Executive’s “Accrued Incentive
Compensation” shall mean the amount of any annual short-term incentive
compensation earned with respect to the calendar year ended prior to the Date
of
Termination (as defined in Section 5) but not yet paid as of the Executive’s
Date of Termination.
The
Executive’s “Stub-Period
Incentive Compensation” shall mean the annual short-term incentive
compensation being earned in the year in which the Executive terminates
employment, pro-rated for the year in which he terminates service, and shall
be
equal to that short-term annual incentive compensation payment to which the
Executive would be entitled, if any, under the terms of the Company’s executive
incentive compensation plan, calculated as if he had been employed by the
Company on the last day of the year including his Date of Termination, and
had
achieved personal goals ‘at target’, but based on actual performance with
respect to the achievement of UIL and Company financial goals (collectively
referred to as “Company goals”), multiplied by a fraction, the numerator of
which is the number of days which have elapsed in such year through the Date
of
Termination and the denominator of which is 365. The UIL Board shall determine
in its discretion the composition of the Executive’s scorecard, and what
constitutes a ‘personal goal’ and ‘Company goal’; provided generally that an
Executive’s ‘personal goals’ shall include, for example, his strategic
opportunities, leadership, and balance scorecard goals, other than business
unit
and UIL total financial goals, and Company goals shall include, for example,
UIL
and business unit financial goals based on earnings per share, cash flow, and
all other goals not defined as personal goals. In the event that the
‘gate’, if any, is not achieved with respect to Company goals, then no
Stub-Period Incentive Compensation will be paid. Any Stub-Period
Incentive Compensation payable upon termination of the Executive shall be paid
in accordance with Section 6(d) of this Agreement.
(c)
Change
in
Control Severance Plan. The Executive
shall be designated by the UIL Board as an individual covered by the UIL
Holdings Corporation Change in Control Severance Plan II of the Company (the
“UIL CIC Plan II”), subject to all of the terms and provisions of the UIL CIC
Plan as it may be amended from time to time. For purposes of this
Agreement, “Change in Control” shall have the meaning set forth in the UIL CIC
Plan II. Nothing in this
subsection, however, shall entitle the Executive to continued
participation in such Plan should the UIL Board determine otherwise in
accordance with the terms of that Plan.
(d)
Business
Expenses. During the Term, the Executive shall be entitled to
receive prompt reimbursement for all reasonable employment- related business
expenses incurred by the Executive, in accordance with the policies and
procedures established by the Company Board from time to time for all of the
Company's executives, provided that the Executive properly accounts
therefor.
(e)
Benefit
Programs. During the Term of the Executive's employment
hereunder and to the extent he meets the applicable eligibility requirements,
the Executive shall be entitled to participate in and receive benefits under
all
of the Company's employee benefit plans, programs and arrangements for its
similarly situated executives on the same terms and conditions that apply to
such executives, including, without limitation, any plan or program of an
affiliated company in which the Company is a participating employer, but only
for so long as the Company remains a participating employer. Nothing
in this Agreement shall require the
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Company
to maintain a particular benefit plan or program, or preclude the Company from
amending or terminating any such plans, programs or arrangements, including
its
participation therein, or eliminating, reducing or otherwise changing any
benefit provided thereunder, so long as such change similarly affects all
similarly situated employees of the Company and is in compliance with applicable
law.
(f)
Vacations
and Holidays. The Executive shall be entitled to that number
of weeks of paid vacation in each calendar year determined by the Company Board
from time to time to be available to similarly situated Company executives,
and
shall also be entitled to all paid holidays afforded by the Company to its
management employees, all in accordance with applicable Company policies.
(5)
TERMINATION
(a)
Death
or
Disability. The Executive's employment hereunder shall terminate upon the
Executive's death or termination due to disability (as described in Section
6(a)
of this Agreement)..
(b)
Termination
by Company for Cause. The Company may at any time by written notice to
the Executive terminate the Executive’s employment for Cause in accordance with
the following provisions:
(i)
Termination
for Cause Prior to a Change in Control. Prior to the date of a Change in
Control, the Company shall be deemed to have “Cause” to terminate the
Executive’s employment hereunder only upon the Executive’s:
(1)
failure to comply with any material term of this Agreement, or to perform and
discharge the duties or obligations of the Executive’s office, or such other
duties as may from time to time be assigned to the Executive by, or at the
direction of, the UIL Board, faithfully, diligently, and competently, unless
any
such failure is cured in all material respects to the reasonable satisfaction
of
the UIL Board within sixty (60) days after the Executive receives written notice
of such failure; or
(2)
failure to devote substantially all of his working time and efforts to the
business and affairs of the Company unless any such failure is cured in all
material respects to the reasonable satisfaction of the UIL Board within sixty
(60) days after the Executive receives written notice of such failure; or
(3)
misconduct that is demonstrably injurious to the interests of the Company or
its
Affiliates (as that term is defined in Section 9) unless such misconduct is
rectified in all material respects to the reasonable satisfaction of the UIL
Board within thirty (30) days after the Executive receives written notice of
such misconduct; or
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(4)
commission of a serious crime, such as an act of fraud, misappropriation of
funds, embezzlement, or a crime involving personal dishonesty or moral
turpitude.
(ii)
Termination
for Cause After a Change in Control. During
the period that commences on a Change in Control and for twenty-four (24) months
thereafter (the “Change in Control Protective Period”), and subject to the same
notice and cure provisions specified above, the Company (or its successor or
other entity employing the Executive following such Change in Control) shall
be
deemed to have Cause to terminate the Executive’s employment hereunder only upon
the Executive’s:
(1)
commission of a serious crime, such as an act of fraud, misappropriation of
funds, embezzlement, or a crime involving personal dishonesty or moral
turpitude; or
(2) misconduct
that is demonstrably injurious to the interests of the Company or its
Affiliates; or
(3)
willful failure of the Executive to substantially perform his duties (other
than
by reason of incapacity due to physical or mental illness or injury).
(c) Termination
by Company without Cause. The Company may terminate the
Executive’s employment at any time, without cause, upon ninety (90) days prior
written notice to the Executive.
(d) Termination
by Executive.
(i) If
the
Executive is not in default of any of the Executive’s obligations under Sections
(2), (9), (10), or (11), the Executive may terminate employment hereunder upon
at least thirty (30) days’ prior notice, for failure of the Company to observe
and perform one or more of its obligations under Sections (2), (3) and/or (4)
hereof, which failure the Company fails to remedy within such notice period
(a
“Breach by the Company”).
(ii) If
the
Executive is not in default of any of the Executive’s obligations under Sections
(2), (9), (10), or (11) hereof, the Executive may terminate employment hereunder
in the absence of a Breach by the Company, effective upon at least ninety (90)
days prior written notice.
(e) Date
of Termination.
For purposes of this Agreement, the “Date of Termination” is defined as (i) the
Executive’s date of death, in the event of his death; or the date of his
termination due to disability, in the case of disability, or (ii) the date
specified in the notice of termination, in the case of the Executive’s
termination pursuant to Sections (5)(b), (5)(c), 5(d) hereof.
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(6)
CONSEQUENCES OF TERMINATION OR NON-RENEWAL.
(a)
Termination
on Death or Disability or Retirement; or by the Executive in the Absence of
a
Breach by the Company upon Adequate Notice. If the Executive’s
employment terminates by reason of the Executive’s death, his total or partial
physical or mental disability such that the Executive becomes entitled to
long-term disability benefits under the Company’s long-term disability plan, or
if the Executive retires on or after becoming eligible to retire under the
terms
of the Company’s Pension Plan, or terminates employment hereunder in the absence
of a Breach by the Company upon ninety (90) days prior written notice, the
Company shall pay to the Executive or, in the event of death or disability,
the
Executive’s personal representative and/or spouse:
(i)
the Executive’s Base Salary and
Accrued Incentive Compensation (as defined in Section 4(b)), earned, but unpaid
as of the Date of Termination;
(ii)
Stub-Period Incentive Compensation
(as defined in Section 4(b)) earned, but unpaid, as of the Date of Termination,
but only in the case of the Executive’s death, termination due to disability or
retirement (as hereinbefore defined), and not in case of his voluntary
termination other than on account of such retirement; plus
(iii)
any amounts payable pursuant to
(4)(d) (unreimbursed business expenses), (4)(e) (employee benefits due and
owing) and (4)(f) (accrued, but unpaid vacation or holidays), plus
(iv)
any benefits or amounts payable,
on account of the Executive’s (A) participation in any long-term incentive
compensation plan and equity compensation plan or arrangement, and (B)
participation in any deferred compensation plan in which he was a participant
as
of his termination of service, all as determined in accordance with the terms
and conditions of such plans and arrangements.
Pending
a
determination that the Executive is entitled to long-term disability benefits,
the Executive’s short-term disability benefits shall be extended, as necessary
at 50% of Base Salary, if his length of employment with the Company is of such
short duration that his short term disability benefits would otherwise expire
before his entitlement to long-term disability benefits is determined.
Upon
payment of these amounts, the Company shall have no further obligation to the
Executive, the Executive’s personal representative and/or spouse under this
Agreement or on account of, or arising out of, the termination of the
Executive’s employment.
(b)
Upon
Termination for Cause; or by the Executive on fewer than 90 days
notice. If the Company terminates the Executive’s employment
for Cause, or the Executive terminates employment hereunder in the absence
of a
Breach by the Company and upon fewer than ninety (90) days prior written notice,
the Company shall pay to the Executive:
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(i)
the Executive’s Base Salary earned,
but unpaid, as of the Date of Termination; plus
(ii)
any amounts payable pursuant to
Sections (4)(d), (4)(e) and 4(f) hereof, and
(iii)
any benefits or amounts payable
under any elective non-qualified deferred compensation plan in which the
Executive had been a participant, other than or any supplemental executive
retirement plan of the Company or an Affiliate,
whereupon
the Company shall have no further obligation to the Executive under this
Agreement or on account of, or arising out of, the termination of the
Executive’s employment.
(c)
Upon
Termination Without Cause, or Upon Breach by the Company, not on account of
a
Change in Control. If
the
Company terminates the Executive's employment hereunder without Cause, or if
the
Executive terminates the Executive's employment hereunder on account of a Breach
by the Company, and in either case the termination is not upon a Change in
Control or within the Change in Control Protective Period, the Company shall
pay
or provide (as applicable) to the Executive, the following:
(i)
the Executive’s Base Salary,
Accrued Incentive Compensation and Stub-Period Incentive Compensation earned,
but unpaid, as of the Date of Termination; plus
(ii)
any amounts payable pursuant to
Sections 4(d), 4(e), and 4(f) hereof; plus
(iii)
any benefits or amounts payable,
on account of the Executive’s (A) participation in any long-term incentive
compensation plan and equity compensation plan or arrangement, and (B)
participation in any deferred compensation plan in which he was a participant
as
of his termination of service, all as determined in accordance with the terms
and conditions of such plans and arrangements; plus
(iv)
lump sum severance equal to one
(1) times the sum
of:
(1) the
Executive’s annual Base Salary rate in effect immediately prior to the
Executive’s Date of Termination, as determined by the UIL Board’s most recent
review of salary rates pursuant to Section 4(a); and
(2) the
short-term annual incentive compensation payment to which the Executive would
be
entitled, calculated as if he had been employed by the Company on the last
day
of the year of his Termination, and as if both personal goals and Company goals
had been achieved ‘at target’ without pro-ration for the fact that the Executive
was employed only a portion of such year. Except for the assumption that such
goals shall have been achieved at target, personal and Company goals shall
be
defined and determined as set forth in Section 4(b) of this Agreement.
(v)
for the period ending on the
first anniversary
of the date of the Executive’s Date of Termination, continued participation in
the medical and dental plan(s) in which he was a
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participant
as of his Date of Termination on the same basis as if he remained an active
employee, provided that such participation is possible under the terms and
provisions of such plans and programs and applicable law. Such period of
continued participation shall run concurrently with, and reduce day- for-day,
any obligation that the Company or any Affiliate would have to provide “COBRA”
continuation coverage with respect to the Executive’s termination of employment.
If the Executive’s participation in any such plan or program is barred as a
result of the Executive’s termination, the Company shall arrange to provide the
Executive with benefits substantially similar on an after-tax basis to those
that the Executive would have been entitled to receive under such plan or
program, provided that with respect to any benefit to be provided on an insured
basis, the value of such coverage shall be based on the present value of the
premiums expected to be paid for such coverage, and with respect to other
benefits, such value shall be the present value of the expected cost to the
Company of providing such benefits.
(d) Upon
Non-renewal of Agreement at end of Term. If the Executive’s
employment hereunder is terminated due to non-renewal of this Agreement, the
Company shall pay or provide (as applicable) to the Executive, the
following:
(i)
the Executive’s Base Salary,
Accrued Incentive Compensation and Stub-Period Incentive Compensation earned,
but unpaid, as of the Date of Termination; plus
(ii)
any amounts payable pursuant to
Sections 4(d), 4(e), and 4(f) hereof; plus
(iii)
any benefits or amounts payable,
on account of the Executive’s (A) exercise of his then exercisable rights under
any long-term incentive compensation plan or arrangement, and (B) participation
in any deferred compensation plan in which he was a participant as of his
termination of service; plus
(iv)
lump sum severance equal to six
(6) months of the
Executive’s annual Base Salary rate in effect immediately prior to the
Executive’s Date of Termination.
(e) Timing
of
Payment. Any cash amount
that is due and owing to the Executive upon his termination of service pursuant
to Section 6 will be paid as soon as administratively feasible following the
effective date (including any revocation period) of the Release provided for
in
Section 6(f); provided, however, that (i) any Stub-Period Incentive
Compensation, and (ii) that portion of any severance payment that is based
on
annual short-term incentive compensation shall be paid following the close
of
the year in which the Date of Termination occurs, at the same time that
incentive compensation generally would be payable upon authorization of the
UIL
Board to all other employees.
(f)
Release. All
payments and
obligations of the Company under Section (6) and (7) shall be conditioned upon
the execution and delivery by Executive to the Company of a full and effective
release by Executive of any liability by the Company to Executive in form and
substance reasonably satisfactory to the Company.
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(7)
CHANGE IN CONTROL
(a) If
on, or within
twenty-four (24) months following, a Change in Control, the Company (or its
successor or other entity employing the Executive following such Change in
Control) either terminates the Executive's employment hereunder without Cause
or
fails to renew this Agreement on substantially identical terms, or if the
Executive terminates the Executive's employment on account of a Constructive
Termination (as defined in the UIL CIC Plan II), then the Executive shall be
entitled to the following:
(i)
the Executive’s Base Salary,
Accrued Incentive Compensation and Stub-Period Incentive Compensation earned,
but unpaid, prior to the Date of Termination; plus
(ii)
any amounts payable pursuant to
Sections 4(d), 4(e), and 4(f) hereof; plus
(iii)
any benefits or amounts payable,
on account of the Executive’s (A) participation in any long-term incentive
compensation plan and equity compensation plan or arrangement, and (B)
participation in any deferred compensation plan in which he was a participant
as
of his termination of service, all as determined in accordance with the terms
and conditions of such plans and arrangements; plus
(iv)
those payments, and benefits, if
any, to which the Executive is entitled by reason of having been designated
a
Participant in the UIL CIC Plan II. The severance payments, pension supplements
and other benefit provisions under such Plan (the “Total UIL CIC Plan Package”)
shall be controlling and shall supplant the payments and benefits to which
the
Executive would be entitled assuming the Executive were terminated without
Cause
pursuant to the terms of this Agreement, including without limitation any
severance benefits, supplemental retirement benefits, short-term incentive
compensation and other compensation and benefits (other than long term incentive
compensation) under this Agreement (the “Employment Agreement Termination
Package”); expressly provided, however, that in the event that the Employment
Agreement Termination Package exceeds the value of the Total UIL CIC Plan
Package, then the Executive shall be entitled to select one or the other
Package, but shall not be entitled to both, and shall not be entitled to select
among compensation elements in each Package.
(b)
For purposes of this Agreement,
Change in Control shall mean “Change in Control” as defined with
respect to the Company employing the Executive in the UIL CIC Plan II, as
amended from time to time.
(c)
Payment of benefits under this
Section 7 shall be subject to, and conditioned upon, the provisions of Section
6(e) and (f) hereof.
(8)
TAX SAVINGS PROVISION
If
any portion of the payments which
the Executive has the right to receive from the Company, or any affiliated
entity, hereunder would constitute "excess parachute payments" (as defined
in
Section 280G of the Internal Revenue Code, and not governed by the terms defined
in
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this
Agreement) subject to the excise tax imposed by Section 4999 of the Internal
Revenue Code, such excess parachute payments shall be reduced to the largest
amount that will result in no portion of such excess parachute payments being
subject to the excise tax imposed by Section 4999 of the Internal Revenue
Code.
(9)
CONFIDENTIAL INFORMATION
The
Executive recognizes that the
Executive’s employment by the Company is one of highest trust and confidence by
reason of his access to certain trade secrets, confidential business practices,
and proprietary information concerning the Company or any person or entity
that
directly, or indirectly through one or more intermediaries, controls or is
controlled by, or is under common control with, the Company (an “Affiliate”),
including, without limitation, the Company’s methods of doing business,
marketing and strategic business plans, employees’ compensation and contract
terms, customer lists and customer characteristics (collectively referred to
as
“Proprietary Information”). The Executive agrees and covenants to
exercise utmost diligence to protect and safeguard the trade secrets,
confidential business practices and Proprietary Information concerning the
Company and any Affiliate. The Executive further agrees and covenants
that, except with the prior written consent of the Company, he will not, either
during the Term hereof or thereafter, directly or indirectly, use for his own
benefit or for the benefit of any other person or organization, or disclose,
disseminate or distribute to any other person or organization, any of the
Proprietary Information (whether or not acquired, learned, obtained or developed
by the Executive alone or in conjunction with another), unless and until such
Proprietary Information has become a matter of public knowledge through no
action or fault of the Executive or unless otherwise required by court order
to
comply with legal process. All memoranda, notes, records, drawings,
documents or other writings whatsoever made, compiled, acquired or received
by
the Executive during the Term hereof arising out of, in connection with, or
related to any activity or business of the Company are and shall continue to
be
the sole and exclusive property of the Company, and shall, together with all
copies thereof, be returned and delivered to the Company by the Executive
immediately, when he ceases to be employed by the Company, or at any other
time
upon the Company’s demand.
(10) NON–COMPETITION.
The
Executive agrees and covenants that, during the Term of this Agreement and
for a
period of twelve (12) months following the month during which the Executive
ceases to be employed by the Company, the Executive will not, in any capacity,
directly or indirectly, whether as a
consultant,
employee, officer, director, partner, member, principal, shareholder, or
otherwise:
(a)
compete with the Company in the
regional marketing of energy services related to the delivery or use, at retail,
of electricity in the Company’s franchise territory; or
(b)
engage in any business activity
that would, directly or indirectly, diminish the retail sales of electricity
in
the Company’s franchise territory; or
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(c)
directly or indirectly divert or
attempt to divert from the Company or any Affiliate any business in which such
entity has been actively engaged during the Term hereof, or in any way interfere
with the relationships that the Company or any Affiliate has with its sources
of
supply or customers; or
(d)
directly or indirectly interfere or
attempt to interfere with the relationship between the Company or any Affiliate
and any of such entity’s employees,
unless
the Company has granted prior written approval which may be withheld for any
reason
Nothing
in this Section shall be construed to prohibit the ownership by the Executive
of
less than five percent (5%) of any class of securities of any entity that is
engaged in any of the foregoing businesses having a class of securities
registered pursuant to the Securities Exchange Act of 1934 (the “Exchange Act”),
provided that such ownership represents a passive investment and that neither
the Executive, nor any group of persons including the Executive, in any way,
directly or indirectly, manages or exercises control of such entity, guarantees
any of its financial obligations, or otherwise takes any part in its business,
other than through exercising the Executive’s rights as a shareholder.
For
purposes of this Section “Affiliate” means any entity that directly or
indirectly controls, is controlled by, or is under common control with the
Company.
As
used
in Sections 9-11, the term the “Company” shall include The United Illuminating
Company, and any successor to, or acquirer of, the business or assets of the
Company.
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(11) DISCLOSURE
AND ASSIGNMENT OF INVENTIONS AND DISCOVERIES.
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(a)
Disclosure
of Inventions. The Executive agrees to make prompt and complete
disclosure to the Company of all inventions and discoveries made or conceived
by
him, alone or with others, while this Agreement is in effect, or within a
reasonable time thereafter, which arise out of or relate to the services
rendered pursuant to this Agreement. The Executive also agrees to keep necessary
records, including notes, sketches, drawings, models and data supporting
all such inventions
and discoveries made by him, alone or with others, during the course of
performing the services pursuant to this Agreement, and the Executive agrees
to
furnish the Company, upon request, all such records.
(b) Assignment
of Inventions and Discoveries. The Executive also agrees that
he will assign to the Company all inventions and discoveries made by him which
arise out of and pertain to the services rendered pursuant to this Agreement,
together with all domestic and foreign patents as may be obtained on these
inventions and discoveries. The Executive further agrees that, upon request
of
the Company, he will execute all necessary papers and cooperate in the fullest
degree with the Company in securing, maintaining and enforcing any such patents
which arise out of his services under this Agreement. It is understood, however,
that these obligations undertaken by Executive will be at no expense to
him.
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(12)
MISCELLANEOUS.
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(a) Equitable
Remedies. The Executive
acknowledges
that the restrictions provided for in Sections (9) through (11) are reasonable
and necessary in order to protect the legitimate interests of the Company and
its Affiliates, and that any violation thereof would result in serious damage
and irreparable injury to the Company and its Affiliates. Further, the
Executive acknowledges that the services to be rendered by him are of such
unique and extraordinary nature, and the resulting injury to the Company from
a
breach of Sections (9) through (11), inclusive, by the Executive would be of
such a nature, that an action at law for the collection of damages would not
provide adequate relief to the Company for the enforcement of its rights in
the
event of an actual or threatened violation by the Executive of his commitments
and obligations under Sections (9) through (11). The Executive agrees that
upon
the actual or threatened breach or violation
of
any of the commitments under Section (9) through (11), the Company shall be
entitled to both preliminary and permanent injunctive relief, in any action
or
proceeding brought in an appropriate court having jurisdiction over the
Executive, to restrain him from committing any violation of any such commitments
and obligations.
(b)
Effect
Of
Breach. All payments and other benefits payable but not yet
distributed to Executive under Sections (6), (7) or (8) shall be forfeited
and
discontinued in the event that the Executive violates Sections (9) through
(11)
of this Agreement, or willfully engages in conduct which is materially injurious
to the Company, monetarily or otherwise, all as determined in the sole
discretion of the Company.
(c)
Successors;
Binding Agreement; Assignment.
(i)
The Company will require the
acquirer of all or substantially all of the business or assets of the Company
(whether directly or indirectly, by purchase of stock or assets, merger,
consolidation or otherwise), by agreement in form and substance reasonably
satisfactory to the Executive, to expressly assume 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 such succession had taken place. If the Company
fails to obtain such agreement prior to the effective date of any such
succession, the Executive may terminate his or her employment with in thirty
(30) days of such succession and treat such termination as a Breach by the
Company and termination without cause on account of a Change in Control
entitling the Executive to payments and benefits under Section 7 of this
Agreement. For purposes of implementing the foregoing, the date on which any
such succession becomes effective shall be deemed the Date of
Termination.
(ii) This
Agreement, and the
Executive’s rights and obligations hereunder, may not be assigned by the
Executive. Any attempted assignment of this Agreement by the
Executive shall be void and of no force or effect. This Agreement and
all rights of the Executive hereunder shall inure to the benefit of and be
enforceable by the Executive’s personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees and legatees.
As
used
in this Section, the term the “Company” shall include The United Illuminating
Company, UIL Holdings Corporation, and any successor to, or acquirer of, the
business or assets of the Company that executes and delivers the agreement
provided for in this Section (12)(c) or which otherwise becomes bound by all
the
terms and provisions of this Agreement by operation of law.
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(d)
Notices. For
the purpose of this Agreement, notices and all other communications to either
party hereunder provided for in the Agreement shall be in writing and shall
be
deemed to have been duly given when delivered or mailed by United States
certified or registered mail, return receipt requested, postage prepaid,
addressed, in the case of the Company, to the Secretary of the Company at 000
Xxxxxx Xxxxxx, Xxx Xxxxx, Xxxxxxxxxxx 00000, or, in the case of the Executive,
to the Executive at his residence, or to such other address as either party
shall designate by giving written notice of such change to the other
party.
(e)
Waiver;
Amendment. No provision of this Agreement may be modified,
waived or discharged unless such waiver, modification or discharge is approved
by the UIL Board and agreed to in a writing signed by the Executive and the
Company. No waiver by either party hereto at any time of any breach
by the other party hereto of, or compliance with, any condition or provision
of
this Agreement to be performed by such other party shall be deemed a waiver
of
any similar or dissimilar provisions or conditions at the same or at any prior
or subsequent time. No agreements or representations, oral or
otherwise, express or implied, with respect to the subject matter hereof have
been made by either party that are not set forth expressly in this
Agreement.
(f)
Governing
Law; Severability. The validity, interpretation, construction
and performance of this Agreement shall be governed by the laws of the State
of
Connecticut. The validity 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. In the event one or more of the provisions of this Agreement should,
for
any reason, be held to be invalid, illegal or unenforceable in any respect,
the
parties agree that such provisions shall be legally enforceable to the extent
permitted by applicable law, and that any court of competent jurisdiction shall
so enforce such provision, or shall have the authority hereunder to modify
it to
make it enforceable to the greatest extent permitted by law.
(g)
No
Conflict. The Executive hereby represents and warrants to the
Company that neither the execution nor the delivery of this Agreement, nor
the
employment of the Executive by the Company will result in the breach of any
agreement to which the Executive is a party.
(h)
Survival. The
provisions of this Agreement shall not survive the termination of this Agreement
or of the Executive’s employment hereunder, except that the provisions of
Sections (6) through (12) hereof shall survive such termination and shall be
binding upon the Executive, the Executive’s personal representative and/or
spouse, the Company, and the Company’s successors and assigns.
(i)
Counterparts;
Facsimile Execution. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument. Facsimile
execution and delivery of this Agreement is legal, valid and binding execution
and delivery for all purposes.
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IN
WITNESS WHEREOF, the parties hereto
have executed this Agreement as of the day and year first above written.
THE
UNITED ILLUMINATING COMPANY
Attest:
|
/s/
Xxxxx X. Xxxxxxx
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By:
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/s/
Xxxxxxxxx X. Xxxxxxx
|
|
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Its
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|||
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/s/
Xxxxxx X. Xxxxxxx
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|||
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Xxxxxx
X. Xxxxxxx
|
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