CONSULTING AGREEMENT
Agreement dated as of December l, 1997 between ENERGYNORTH,
INC. of 0000 Xxx Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxxxxx ("XXX") and
XXXXXX X. XXXXXX of Concord, New Hampshire ("Consultant").
In consideration of the mutual promises and obligations
contained in this Agreement, the Consultant and ENI agree as
follows:
1. General Description and Scope of Services
1.1. ENI agrees to retain the services of the
Consultant, acting in the capacity of an independent
contractor, to perform services in the areas of
environmental investigation and remediation and related
matters as designated by ENI, to which the Consultant
shall apply his substantial knowledge, experience and
resources.
1.2. The Consultant agrees to devote such time, not to
exceed an average of eight hours per week, and best
efforts as may be necessary to perform his duties and
responsibilities pursuant to the terms and conditions
of this Agreement. Duties and responsibilities
hereunder may be performed by the Consultant through
the use of mail services, telephone,electronic mail,
facsimile or other means of telecommunication.
1.3. Unless otherwise agreed to in writing, the
Consultant agrees not to hire, solicit the employment,
or retain the services of any personnel of ENI while
the Consultant is performing services for ENI under
this Agreement.
1.4. The Consultant is not, and shall not be construed
to be an employee, executive, officer or director of
ENI or any of its subsidiaries under this Agreement.
Consultant may perform services for other clients which
do not conflict with his obligations under this
Agreement.
2. Terms of Consulting Services
The Consultant is retained by ENI for the two-year
period beginning January 1, 1998 through December 31,
1999, unless earlier terminated as provided in Section
6 of this Agreement.
3. Compensation
3.1. The Consultant shall be paid by ENI at the rate of
$2,500.00 per month for the services provided under
this Agreement. The Consultant's services shall be
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billed by the Consultant at the end of each month and
shall be immediately due and payable.
3.2. ENI shall pay or reimburse or cause to be
reimbursed to the Consultant, in addition to the
payment for services described in Section 3.1, all
reasonable expenses incurred by the Consultant in
performing his services pursuant to this Agreement,
including telephone toll charges, travel expenses
(excluding travel to and from ENI offices), and
disbursements made on behalf on ENI or its
subsidiaries.
4. Facilities and Access to Records and Premises
4.1. ENI shall provide access to its facilities and
such workspace as is reasonably required by Consultant
to perform services pursuant to this Agreement.
Consultant shall maintain his own office facilities,
and ENI shall provide electronic connection between its
facilities and Consultant's facilities.
4.2. ENI agrees to disclose to and permit access of the
Consultant all information as may be reasonably
necessary to the performance of his obligations under
the terms of this Agreement.
4.3. Unless otherwise agreed to by the parties, the
Consultant, while working on the premises of ENI or its
subsidiaries, shall observe the working hours, working
rules and holiday schedules of ENI applicable to such
company's premises.
5. Non-Disclosure Covenant
5.1. Non-Disclosure. Except as may be required in the
performance of his duties under the terms of this
Agreement, unless this Agreement is terminated by ENI
without cause or is terminated by the Consultant by
reason of a breach of this Agreement by ENI, during the
term of this Agreement and for a period of three (3)
years thereafter, the Consultant will not, without
prior written consent of ENI, disclose, use, or permit
the use at any time either during or subsequent to his
retention under this Agreement any trade secret or
confidential information of ENI of which the Consultant
may become informed during his association with ENI.
For the purposes of this Section 5.1, "trade secret or
confidential information of ENI" means information
conspicuously treated as a secret and not generally
known about ENI's or any of its subsidiaries' or
affiliates' financial information, market information,
or business information such as products, processes,
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research, development, manufacturing techniques, or
customers and marketing plans. This non-disclosure
covenant does not release the Consultant from or
supersede any non-disclosure obligations that exist
under any other agreements between him and ENI.
5.2. The Consultant acknowledges that breach of the
covenants contained in Section 5.1 of this Agreement
cannot be adequately remedied by the award of monetary
damages and agrees that his obligations under Section
5.1 shall be specifically enforceable.
6. Termination
6.1. In the event of any material breach of this
Agreement by either party, the other party may
terminate this Agreement upon seven (7) days' written
notice, unless during such period the breach has been
remedied or cured, which termination shall not preclude
the terminating party from any other remedies it may
have at law or in equity.
6.2. ENI may terminate this Agreement, upon seven (7)
days' written notice, for good cause, which termination
shall not preclude ENI from any other remedies it may
have at law or in equity. "Good cause" shall be
limited to conviction of a felony or a crime involving
an act of moral turpitude, dishonesty, misfeasance
which substantially interferes with the orderly
business of ENI or any of its subsidiaries, action that
directly or indirectly causes ENI or any of its
subsidiaries to suffer substantial loss or damage,
refusal to follow or materially neglecting the
reasonable requests of ENI made pursuant to this
Agreement, and conduct that substantially interferes
with or damages the standing or reputation of ENI or
any of its subsidiaries.
6.3. The Consultant may terminate this Agreement, upon
thirty (30) days' written notice, at his election.
6.4. This Agreement shall be terminated in the event of
the death or total disability of the Consultant.
6.3. If this Agreement is terminated as provided herein
for any reason other than by Consultant's breach of the
Agreement as provided in Section 6.1, good cause as
provided in Section 6.2, Consultant's termination of
the Agreement as provided in Section 6.3, or
Consultant's death or total disability as provided in
Section 6.4, the monthly payments specified in Section
3.1 shall continue until the expiration of this
Agreement on December 31, 1999.
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7. Termination on Change of Control
This Agreement shall continue upon the change of
control or ownership of ENI. In the event ENI or its
successors terminate this Agreement for any reason
(including those designated in Sections 6.1 and 6.2) or
materially breach this Agreement, ENI or its successor
shall continue to make the same monthly payments
specified in Section 3.1 until the expiration of this
Agreement on December 31, 1999. A "change of control
or ownership of ENI" for purposes of this paragraph
means that at least forty percent (40%) of the
outstanding stock of ENI, or such lesser amount as the
Board shall deem necessary to obtain effective control
of ENI, has been obtained by a corporation, person or
entity through a merger, consolidation or tender or
exchange offer not initiated, supported or endorsed by
the Board of ENI.
8. Other Agreements
This Agreement contains the entire understanding
between the parties and supersedes all prior agreements
between them except to the extent specified in Section
5 of this Agreement and neither party shall have any
rights against the other pursuant to or in connection
with such prior agreements or their previous
relationship as employer and employee; provided,
however, that this Agreement shall not affect any
benefits that may have accrued or vested to the
Consultant under the Deferred Compensation Agreement
dated November 30, 1993 (as amended) between ENI and
the Consultant, ENI's qualified Pension Plan, the ENI
Supplemental Executive Retirement Plan, or the ENI Key
Employee Performance and Equity Incentive Plan. In
addition, this Agreement shall not affect any health or
insurance benefits available to Consultant by virtue of
his status as a retired employee of ENI.
9. 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 Ch. 542. Judgment upon the award may be
entered in any court of competent jurisdiction.
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10. General Provisions
10.1. Nonassignability. Neither this Agreement nor
any right or interest hereunder shall be assigned by
the Consultant, his beneficiaries, or legal representative,
without ENI's prior written consent; provided, however
that Consultant may assign his right to continued payments
in the event of his termination as provided under
Section 6.5 and 7.
10.2. Indemnification. ENI shall indemnify and hold
Consultant harmless from all claims and expenses for loss
or damages, including costs of defense and attorneys fees,
related to his performance of services pursuant to this
Agreement.
10.3. No Attachment. Except as required by law, no
right to receive payments under this Agreement
shall be subject to anticipation, commutation,
alienation, sale, assignment, encumbrance, charge,
pledge, or hypothecation or to execution,
attachment, levy, or similar process of assignment
by operation of law, and any attempt, voluntary or
involuntary, to effect any such action shall be
null, and of no effect.
10.4. Waiver of Breach. The waiver by either party
of a breach or any provision of this agreement
shall not operate as a waiver of a subsequent
breach of the same or any other provision.
10.5. Notices. Any notice required to be given
under this Agreement shall be deemed sufficient if
in writing and sent by mail to the parties at the
addresses shown above, or such other address as
either party may designate from time to time.
Notices shall be effective in the order they are
received or, if received the same day, as of the
time of postmark.
10.6. Binding Effect. This Agreement shall be
binding upon and inure to the benefit of the
Consultant and his successors and assigns, heirs,
executors, administrators and legal
representatives, and shall be binding upon and
inure to the benefit of ENI, its successors and
assigns, including, without limitation, any
person, partnership, company or corporation which
may acquire substantially all of ENI's assets or
business or with or into which ENI may be
liquidated, consolidated, merged or otherwise
combined.
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10.7. Amendment of Agreement. This Agreement may
not be modified or amended except by an instrument
in writing signed by the parties.
10.8 Headings. The headings in this Agreement
herein are included solely for convenience of
reference and shall not control the meaning or
interpretation of any of the provisions of this
Agreement.
10.9 Governing Law. This Agreement has been
executed and delivered in the State of New
Hampshire and its validity, interpretation,
performance and enforcement shall be governed by
the laws of the State of New Hampshire.
IN WITNESS WHEREOF, ENI has caused this Agreement to be
executed, and the Consultant has signed this Agreement, all as of
the day and year first above written.
ENERGYNORTH, INC.
/s/ Xxxxxxxx X. Xxxx By:/s/ Xxxxxx X. Xxxxxxxx
Witness Xxxxxx X. Xxxxxxxx, President
and Chief Executive Officer
/s/ Xxxxxxxx X. Xxxx By:/s/ Xxxxxx X. Xxxxxx
Witness Xxxxxx X. Xxxxxx
