July 14, 1999
Xxxxxxxx X. Xxxxxxxx
0 Xxxxxxx Xxxx
Xxxxxxx, Xxx Xxxxxxxxx 00000
Re: Amended and Restated Management Continuity Agreement
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Dear Xx. Xxxxxxxx:
The Board of Directors (the "Board") of EnergyNorth, Inc.
(the "Company") recognizes that, as is the case with many
publicly held corporations, there always exists the possibility
of a change of control of the Company. This possibility and the
uncertainty it creates may result in the loss or distraction of
members of management of the Company and its subsidiaries to the
detriment of the Company and its shareholders.
The Board considers the establishment, maintenance, and
continuity of a sound and vital management to be essential to
protecting and enhancing the best interests of the Company and
its shareholders. The Board also believes that when a change of
control is perceived as imminent, or is occurring, the Board
should be able to receive and rely on disinterested advice from
management regarding the best interests of the Company and its
shareholders without concern that members of management might be
distracted or concerned by the personal uncertainties and risks
created by the perception of an imminent or occurring change of
control.
Accordingly, the Board has determined that appropriate steps
should be taken to assure the Company of the continued employment
and attention and dedication to duty of certain members of
management of the Company and to ensure the availability of their
disinterested advice, notwithstanding the possibility, threat or
occurrence of a change of control.
In addition, the Board and you have agreed to amend and
restate the provisions of that certain Management Continuity
Agreement dated December 2, 1996 (the "Original MCA").
Therefore, in order to fulfill the above purposes, the Board
and you have agreed as set forth below.
1. Offer. In order to induce you to remain in the employ
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of the Company and to provide continued services to the Company
now and in the event that a change of control is imminent or
occurring, this amended and restated letter agreement (the
"Agreement") sets forth severance benefits which the Company
offers to pay to you in the event of a termination of your
employment (as described in Section 5 below, excluding a
termination for Cause, disability, death or retirement)
subsequent to a Change of Control of the Company (as defined in
Section 4 below).
2. Operation. This Agreement shall be deemed to be
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effective as of the date of the Original MCA (the "Effective
Date") but, anything in this Agreement to the contrary
notwithstanding, neither this Agreement nor any of its provisions
shall be operative unless and until there has been a Change of
Control while you are still an employee of the Company, nor shall
this Agreement govern or affect your employment relationship with
the Company except as explicitly set forth herein. Upon a Change
of Control, if you are still employed by the Company, this
Agreement and all of its provisions shall become operative
immediately. If your employment relationship with the Company is
terminated before a Change of Control, you shall have no rights
or obligations under this Agreement.
3. Term.
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(a) Term of Agreement. This Agreement, and all
rights and obligations of the parties hereunder, shall take
effect upon the Effective Date and shall expire upon the first to
occur of (i) the expiration of the Term (as defined below) if a
Change of Control has not occurred during the Term, (ii) the date
24 months after the Change of Control Date, if the Executive is
still employed by the Company as of such later date, or (iii) the
fulfillment by the Company of all of its obligations under this
Agreement if the Executive's employment with the Company
terminates within 24 months following the Change of Control Date.
"Term" shall mean the period commencing as of the Effective Date
and continuing in effect through December 1, 1998.
(b) One-Year Evergreen Provision. This Agreement
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shall be reviewed annually by the Board at its meeting held for
the review of compensation and in all events prior to December 1
of each year. At such yearly review, the Board shall consider
whether or not to extend the Term for an additional year. Unless
the Board affirmatively votes not to extend this Agreement, the
Term shall be extended for a period of one year from the previous
termination date. In the event the Board votes not to extend this
Agreement, the termination date of this Agreement shall be the
later of twenty-four months from the effective date of this
Agreement or twenty-four months from December 1st of the year in
which this Agreement was last extended.
4. Change of Control. For the purpose of this Agreement,
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a "Change of Control" shall mean:
(a) The acquisition by any individual, entity or group
[within the meaning of Section 13(d)(3) or 14(d)(2) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act")]
(a "Person") of beneficial ownership (within the meaning of Rule
13d-3 promulgated under the Exchange Act) of 20% or more of
either (i) the then outstanding shares of common stock of the
Company (the "Outstanding Company Common Stock") or (ii) the
combined voting power of the then outstanding voting securities
of the Company entitled to vote generally in the
election of directors (the "Outstanding Company Voting Securities");
provided, however, that the following acquisitions shall not
constitute a Change of Control: (i) any acquisition directly from
the Company (excluding an acquisition by virtue of the exercise
of a conversion privilege), (ii) any acquisition by the Company,
(iii) any acquisition by any employee benefit plan (or related
trust) sponsored or maintained by the Company or any corporation
controlled by the Company or (iv) any acquisition by any
corporation pursuant to a reorganization, merger or
consolidation, if, following such reorganization, merger or
consolidation, the conditions described in clauses (i), (ii) and
(iii) of Section 4 (c) are satisfied; or
(b) Individuals who, as of the date hereof, constitute
the Board (the "Incumbent Board") cease for any reason to
constitute at least a majority of the Board; provided, however,
that any individual becoming a director subsequent to the date
hereof whose election, or nomination for election by the
Company's shareholders, was approved by a vote of at least a
majority of the directors then comprising the Incumbent Board
shall be considered as though such individual were a member of
the Incumbent Board, but excluding, for this purpose, any such
individual whose initial assumption of office occurs as a result
of either an actual or threatened election contest (as such terms
are used in Rule 14a-11 of Regulation 14A promulgated under the
Exchange Act) or other actual or threatened solicitation of
proxies or consents by or on behalf of a Person other than the
Board; or
(c) Approval by the shareholders of the Company of a
reorganization, merger or consolidation, in each case, unless,
following such reorganization, merger or consolidation, (i) more
than 60% of, respectively, the then outstanding shares of common
stock of the corporation resulting from such reorganization,
merger or consolidation and the combined voting power of the then
outstanding voting securities of such corporation entitled to
vote generally in the
election of directors is then beneficially owned, directly
or indirectly, by all or substantially all of the
individuals and entities who were the beneficial owners,
respectively, of the Outstanding Company Common Stock and
Outstanding Company Voting Securities immediately prior to such
reorganization, merger or consolidation in substantially the same
proportions as their ownership, immediately prior to such
reorganization, merger or consolidation, of the Outstanding
Company Common Stock and Outstanding Company Voting Securities,
as the case may be, (ii) no Person (excluding the Company, any
employee benefit plan (or related trust) of the Company or such
corporation resulting from such reorganization, merger or
consolidation and any Person beneficially owning, immediately
prior to such reorganization, merger or consolidation, directly
or indirectly, 20% or more of the Outstanding Company Common
Stock or Outstanding Company Voting Securities, as the case may
be) beneficially owns, directly or indirectly, 20% or more of,
respectively, the then outstanding shares of common stock of the
corporation resulting from such reorganization, merger or
consolidation or the combined voting power of the then
outstanding voting securities of such corporation entitled to
vote generally in the election of directors and (iii) at least a
majority of the members of the board of directors of the
corporation resulting from such reorganization, merger or
consolidation were members of the Incumbent Board at the time of
the execution of the initial agreement providing for such
reorganization, merger or consolidation; or
(d) Approval by the shareholders of the Company of (i)
a complete liquidation or dissolution of the Company or (ii) the
sale or other disposition of all or substantially all of the
assets of the Company, other than to a corporation, with respect
to which following such sale or other disposition, (A) more than
60% of, respectively, the then outstanding shares of common stock
of such corporation and the combined voting power of the then
outstanding voting
securities of such corporation entitled to vote generally
in the election of directors is then beneficially owned,
directly or indirectly, by all or substantially all of the
individuals and entities who were the beneficial owners,
respectively, of the Outstanding Company Common Stock and
Outstanding Company Voting Securities immediately prior to such
sale or other disposition in substantially the same proportion as
their ownership, immediately prior to such sale or other
disposition, of the Outstanding Company Common Stock and
Outstanding Company Voting Securities, as the case may be, (B) no
Person (excluding the Company and any employee benefit plan (or
related trust) of the Company or such corporation and any Person
beneficially owning, immediately prior to such sale or other
disposition, directly or indirectly, 20% or more of the
Outstanding Company Common Stock or Outstanding Company Voting
Securities, as the case may be) beneficially owns, directly or
indirectly, 20% or more of, respectively, the then outstanding
shares of common stock of such corporation and the combined
voting power of the then outstanding voting securities of such
corporation entitled to vote generally in the election of
directors and (C) at least a majority of the members of the board
of directors of such corporation were members of the Incumbent
Board at the time of the execution of the initial agreement or
action of the Board providing for such sale or other disposition
of assets of the Company.
5. Severance Benefit.
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(a) Severance Benefits. If, within two years after a
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Change of Control (as defined above) of the Company, you are
discharged without Cause or resign for Good Reason (as defined
below), the Company shall:
(i) pay to you within ten business days following
the Date of Termination (as defined below) a lump sum severance
benefit equal to (A) the greater of three times (1) your annual
salary, including deferrals, as in effect immediately prior to
the Change of
Control, or (2) your annual salary including deferrals,
as in effect on the Date of Termination, plus (B) the
greater of (1) three times the average of the prior three years'
annual incentive compensation award earned by you under the
EnergyNorth, Inc. Key Employee Performance and Equity Incentive
Plan (the "Incentive Plan") or (2) three times your "target"
level of incentive compensation, for the year in which the Date
of Termination falls, under the Incentive Plan, plus (C) interest
on any delayed payment at the rate of 150% of the Prime Rate as
posted by BankBoston or any successor entity thereto;
(ii) pay to you within ten business days following
the Date of Termination an additional lump sum severance benefit
equal to the amount of the annual incentive compensation award,
at the "target" level of incentive compensation for the year in
which the Date of Termination falls, under the Incentive Plan,
multiplied by a fraction, the numerator of which shall be the
number of days in the Incentive Plan Year in which the Date of
Termination takes place through and including the Date of
Termination, and the denominator of which shall be 365, plus
interest on any delayed payment at the rate of 150% of the Prime
Rate as posted by BankBoston or any successor entity thereto; and
(iii) continue to provide to you, for the
thirty-six month period following the Date of Termination, all
health, dental, vision and life insurance benefits ("Welfare
Benefits") pursuant to any and all qualified and non-qualified
employee benefit plans in which you were a participant on the
Date of Termination, as if you continued to be employed by the
Company during such thirty-six month period. Any and all Welfare
Benefits based on or with reference to your base salary shall be
calculated based upon the compensation determined pursuant to
Section 5(a)(i), and to the extent that any such Welfare Benefits
shall not be payable or provided to you under any plan, the
Company shall pay or provide such Welfare Benefits to
you on an individual basis. If the Company for any reason is
unable to continue the Welfare Benefits on an individual basis,
then the Company shall pay to you within ten business days following
the Date of Termination a lump sum cash amount equal to the present
value of the Welfare Benefits.
(b) Good Reason. If any of the following events
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occurs within two years after a Change of Control, you may
voluntarily terminate your employment for "Good Reason" within 30
days of the occurrence of such event and be entitled to the
severance benefits set forth in Section 5 above:
(i) the Company assigns any duties to you which
are inconsistent with your position, duties, offices, titles,
responsibilities, reporting requirements or status with the
Company immediately prior to a Change of Control; or
(ii) the Company reduces your base salary,
including deferrals, as in effect immediately prior to a Change
of Control; or
(iii) the Company discontinues any bonus or
other compensation plans or any other benefit, stock ownership
plan, stock purchase plan, stock option plan, life insurance
plan, health plan, disability plan or similar plan (as the same
existed immediately prior to the Change of Control) in which you
participated or were eligible to participate in immediately prior
to the Change of Control and in lieu thereof does not make
available plans providing at least comparable benefits; or
(iv) the Company takes action which adversely
affects your participation in, or eligibility for, or materially
reduces your benefits under, any of the plans described in (3)
above, or which deprives you of any material fringe benefit
enjoyed by you immediately prior to the Change of Control, or
fails to provide you with the number of paid
vacation days to which you were entitled in accordance with
normal vacation policy immediately prior to the Change of Control; or
(v) the Company requires you to be based at any
office or location other than one within a 50-mile radius of the
boundaries of EnergyNorth Natural Gas, Inc.'s Franchise territory
as such boundaries existed immediately prior to the Change in
Control; or
(vi) the Company purports to terminate your
employment otherwise than as expressly permitted by this
Agreement; or
(vii) the Company fails to comply with and
satisfy Section 7, provided that such successor has received at
least ten days prior written notice from the Company or from you
of the requirements of Section 7.
You shall have the sole right to determine, in good faith,
whether any of the above events has occurred. Anything in this
Agreement to the contrary notwithstanding, a termination of
employment by you for any reason during the 30-day period
immediately following the first anniversary of a Change of
Control ("Window Period") shall be deemed to be a termination for
Good Reason for all purposes of this Agreement.
(c) Cause. Cause shall mean: (i) conviction of a
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felony or crime involving an act of moral turpitude, dishonesty
or misfeasance, in each case that substantially interferes with
the orderly business of the Company or any of its subsidiaries,
(ii) refusal of the Executive to follow or material neglect by
the Executive of reasonable requests of the Company made pursuant
to this Agreement (other than any such refusal or neglect
resulting from incapacity due to physical or mental illness (each
a "Disability") or any such failure or refusal after the
Executive gives notice of termination for Good Reason (as defined
in Section 5(b)) , and (iii) willfully engaging in conduct that
substantially interferes with or damages the standing or
reputation of the Company or any of its subsidiaries; provided,
however, no termination for Cause pursuant to either clause (ii)
or (iii) hereof shall be effective unless the Company shall have
first provided the Executive (A) 30 days written notice in the
manner contemplated by Section 9 setting forth in reasonable
detail the Company's basis for such termination, including the
manner in which the Board believes the Executive has not
substantially performed his duties and (B) an opportunity to cure
any deficiencies noted by the Company in such notice that
Executive shall not have reasonably addressed (and if so
reasonably addressed, shall be deemed cured) prior to the
expiration of such 30-day period (the "For Cause Termination
Date"). In the event of an effective termination of employment
for Cause, this Agreement and all of the rights and obligations
of the parties hereto shall forthwith terminate, except where
this Agreement expressly provides that any provisions survive
termination of this Agreement.
For purposes of this Section 5(c), no act or failure to act
by the Executive shall be considered "willful" unless it is done,
or omitted to be done, in bad faith and without reasonable belief
that the Executive's action or omission was in the best interests
of the Company. The Company and you acknowledge and agree that
any termination resulting from incapacity of the Executive due to
Disability shall be deemed a termination without Cause.
(d) Notice of Termination. Any termination by the
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Company (other than a termination for Cause pursuant to Section
5(c)), or by you for Good Reason, shall be communicated by Notice
of Termination to the other party hereto given in accordance with
Section 9. For purposes of this Agreement, a "Notice of
Termination" means a written notice which (i) indicates the
specific termination provision in this Agreement relied upon,
(ii) to the extent applicable, sets forth in reasonable detail
the facts and circumstances claimed to provide a basis for
termination of your employment under the provision so indicated
and (iii) if the Date of
Termination (as defined below) is other than the date of receipt
of such notice, specifies the termination date (which date shall
be not more than 15 days after the giving of such notice).
(e) Date of Termination. "Date of Termination" means
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(i) if your employment is terminated by the Company for Cause,
the For Cause Termination Date as specified in the notice
provided pursuant to Section 5(c), (ii) if your employment is
terminated by you for Good Reason, the date of receipt of the
Notice of Termination or any later date specified therein, as the
case may be, (iii) if your employment is terminated by the
Company other than for Cause, death or disability, the Date of
Termination shall be the date on which the Company notifies you
of such termination and (iv) if your employment is terminated by
reason of death or disability, the Date of Termination shall be
the date of your death or the date you are determined to have a
disability under any long-term disability policy of the Company
which covers you, or, if none, as defined in the EnergyNorth,
Inc. Retirement Plan for Salaried Employees, as the case may be.
(f) Other Benefits Payable. The severance benefit
----------------------
described in Section 5(a) above shall be payable in addition to,
and not in lieu of, all other accrued or vested or earned by
deferred compensation, rights, options or other benefits which
may be owed to you following discharge or resignation (and
whether or not contingent on any Change of Control preceding such
termination), including but not limited to accrued vacation or
sick pay, amounts or benefits payable, if any, under any bonus or
other compensation plans, stock option plan, stock ownership
plan, stock purchase plan, life insurance plan, health plan,
disability plan or similar plan.
(g) Excise Tax Make-Whole. In the event it shall be
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determined that any payment or distribution by the Company to you
or for your benefit, whether paid or payable or distributed or
distributable pursuant to the terms of this Agreement or
otherwise (a "Payment"),
would be subject to the excise tax imposed by Section 4999
of the Internal Revenue Code of 1986, as amended (the "Code")
(or any successor thereto) or comparable state or local tax
or any interest or penalties with respect to such excise
tax or comparable state or local tax (such excise tax,
together with any such interest and penalties, are hereinafter
collectively referred to as the "Excise Tax"), then you
shall be entitled to receive an additional payment (a
"Gross-Up Payment"). The Gross-Up Payment shall be equal to the
sum of the Excise Tax with respect to the Payment and all taxes
(including any interest or penalties imposed with respect to such
taxes) imposed on (or economically borne by) you (including the
Excise Tax, state and federal income taxes and all applicable
withholding taxes) attributable to the Gross-Up Payment. For
purposes of the preceding sentence, all taxes attributable to the
receipt by you of a Gross-Up Payment shall be computed assuming
the application of the maximum tax rates provided by law.
If the Company determines that it is required to withhold
any Excise Tax or report that any Excise Tax is due, or if the
Company otherwise determines that any Gross-Up Payment is
required, it shall promptly pay such Gross-Up Payment (net of
applicable wage withholding). If you determine that a Gross-Up
Payment is required, you shall so notify the Company in writing,
specifying the amount of Gross-Up Payment required and details as
to the calculation thereof. The Company shall, within 30 days,
either pay such Gross-Up Payment (net of applicable wage
withholding) to you or furnish an unqualified opinion from
Independent Tax Counsel (as defined below), addressed to you and
the Company, that there is substantial authority (within the
meaning of Section 6661 of the Code) for the position that no
Gross-Up Payment is required. In that event the Company shall not
withhold any amount of Excise Tax or take any other action which
is inconsistent with such opinion of counsel. "Independent Tax
Counsel" means a lawyer with expertise in the area of executive
compensation tax law, who shall be selected by you and
shall be reasonably acceptable to the Company, and whose fees
and disbursements shall be paid by the Company.
If the Internal Revenue Service or other tax authority
proposes in writing an adjustment to your income tax that would
result in a Gross-Up Payment, you shall promptly notify the
Company in writing and shall refrain for at least thirty days
after giving such notice, if so permitted by law, from paying any
tax (including interest, penalties and additions to tax) asserted
to be payable as a result of such proposed adjustment. Before the
expiration of such period, the Company shall either pay the
Gross-Up Payment or provide an opinion from Independent Tax
Counsel to you and the Company as to whether it is more likely
than not that the proposed adjustment would be successfully
challenged if the matter were to be litigated. If the opinion
provides that a challenge would be more likely than not to be
successful if the issue were litigated, and the Company requests
in writing that you contest such proposed adjustment, then you
shall contest the proposed adjustment and shall consult in good
faith with the Company with respect to the nature of all action
to be taken in furtherance of the contest of such proposed
adjustment; provided that you, after such consultation with the
Company, shall determine in your sole discretion the nature of
all action to be taken to contest such proposed adjustment,
including (a) whether any such action shall initially be by way
of judicial or administrative proceedings, or both, (ii) whether
any such proposed adjustment shall be contested by resisting
payment thereof or by paying the same and seeking a refund
thereof, and (iii) if you shall undertake judicial action with
respect to such proposed adjustment, the court or other judicial
body before which such action shall be commenced and the court or
other judicial body to which any appeals should be taken. You
agree to take appropriate appeals of any judicial decision that
would require the Company to pay a Gross-Up Payment, provided the
Company requests in writing that you do so
(PAGE>
and provides an opinion from Independent Tax Counsel to
you and the Company that it is more likely than not that
the appeal would be successful. You further agree to settle,
compromise or otherwise terminate a contest with the Internal
Revenue Service or other tax authority with respect to all
or a portion of the proposed adjustment giving rise to the
Gross-Up Payment, if requested by the Company in writing
to do so at any time, in which case you shall be entitled
to receive from the Company the Gross-Up Payment. In no
event shall you compromise or settle all or any portion of a
proposed adjustment which would result in a Gross-Up Payment
without the written consent of the Company.
You shall not be required to take or continue any action
pursuant to this Section 5(g) unless the Company acknowledges its
liability under this Agreement in the event that the Internal
Revenue Service or other tax authority prevails in the contest
and timely makes the payments required by this paragraph. The
Company hereby agrees to indemnify you in a manner reasonably
satisfactory to you for any fees, expenses, penalties, interest
or additions to tax which you may incur as a result of contesting
the validity of any Excise Tax and to pay you promptly upon
receipt from time to time of a written demand therefor all costs
and expenses which you may incur in connection with contesting
such proposed adjustment (including reasonable fees and
disbursements of Independent Tax Counsel); provided, however,
that the Company shall not be required to reimburse any amount of
tax which you are required to pay to permit your institution of a
claim for refund under this Section 5(g).
If you shall have contested any proposed adjustment as above
provided, and for so long as you shall be required under the
terms of this Section 5(g) to continue such contest, the Company
shall not be required to pay a Gross-Up Payment until there
occurs a Final Determination (as defined below) of your liability
for the tax and any interest, penalties and
additions to tax asserted to be payable as a result of such proposed
adjustment. A "Final Determination" shall mean (a) a decision, judgment,
decree or other order by any court of competent jurisdiction, which
decision, judgment, decree or other order has become final after
all allowable appeals by either party to the action have been
exhausted, the time for filing such appeal has expired or you
have no right under the terms thereof to request an appeal, (b) a
closing agreement entered into under Section 7121 of the Code or
any other settlement agreement entered into in connection with an
administrative or judicial proceeding and with your consent, or
(c) the expiration of the time for instituting a claim for
refund, or if such a claim was filed, the expiration of the time
for instituting suit with respect thereto.
In the event you receive any refund from the Internal
Revenue Service or other tax authority on account of an
overpayment of Excise Tax, such amount shall be promptly paid by
you to the Company.
(h) Payment Obligations Absolute. Upon a Change of
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Control the Company's obligations to pay the severance benefits
or make any other payments described in this Section 5 shall be
absolute and unconditional and shall not be affected by any
circumstances, including, without limitation, any set-off,
counterclaim, recoupment, defense or other right which the
Company or any of its subsidiaries may have against you or anyone
else. You shall not be required to mitigate the amount of any
payment or benefits provided by this Section 5 by seeking other
employment, and if you do accept other employment, any payment or
benefits hereunder shall not be reduced by any compensation
earned or other benefits received by you as a result of such
employment.
(i) Legal Fees and Expenses. Subject to and
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contingent upon the occurrence of a Change of Control the Company
agrees to pay promptly as incurred, to the full extent
permitted by law, all legal fees and expenses which you may
reasonably thereafter incur as a result of any contest, litigation
or arbitration (regardless of the outcome thereof) by the Company,
you or others of the validity or enforceability of, or liability
under, any provision of this Agreement (including any contest by
you about the amount of any payment pursuant to this Agreement),
plus in each case interest on any delayed payment at the rate of
150% of the Prime Rate posted by the BankBoston or any successor
entity thereto.
(j) Retirement. If your employment is terminated due
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to retirement, you shall not be entitled to severance benefits
under this Agreement, regardless of the occurrence of a Change of
Control. A termination by retirement shall have occurred where
your termination is caused by the fact that you have reached
normal retirement age for employees in your position.
(k) Notwithstanding anything contained herein to the
contrary, in the event that prior to a Change of Control (i) the
Company terminates your employment without Cause or (ii) you
terminate your employment for Good Reason, in each case in
connection with or in anticipation of a Change of Control,
including at the request of a third party who has taken steps
reasonably calculated to effect a Change of Control, you shall be
entitled to the severance benefits provided by Section 5 as if
such termination had occurred immediately following such Change
of Control.
6. Assignability. This Agreement is binding on and is for
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the benefit of the parties hereto and their respective
successors, heirs, executors, administrators and other legal
representatives. Neither this Agreement nor any right or
obligation hereunder may be assigned by the Company (except to
any subsidiary or affiliate) or by you.
7. Successor. The Company shall require any successor
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(whether direct or indirect, by purchase, merger, consolidation
or otherwise) to all or substantially all of the business and/or
assets of the Company to assume expressly and agree to perform
this Agreement in the same manner and to the same extent that the
Company would be required to perform. As used in this Agreement,
"Company" shall mean the company as hereinbefore defined and any
successor to its business and/or assets as aforesaid which
assumes and agrees to perform this Agreement by operation of law,
or otherwise.
8. Amendment: Waiver. This Agreement may be amended only
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by an instrument in writing signed by the parties hereto, and any
provision hereof may be waived only by an instrument in writing
signed by the party or parties against whom or which enforcement
of such waiver is sought. The failure of either party hereto at
any time to require the performance by the other party hereto of
any provision hereof shall in no way affect the full right to
require such performance at any time thereafter, nor shall the
waiver by either party hereto of a breach of any provision hereof
be taken or held to be a waiver of any succeeding breach of such
provision or a waiver of the provision itself or a waiver of any
other provision of this Agreement.
9. Notices. All notices and other communications
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hereunder shall be in writing and shall be given by hand delivery
to the other party or by registered or certified mail, return
receipt requested, postage prepaid, addressed as follows:
If to you:
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Xxxxxxxx X. Xxxxxxxx
0 Xxxxxxx Xxxx
Xxxxxxx, XX 00000
If to the Company:
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Vice President of Human Resources
EnergyNorth, Inc.
0000 Xxx Xxxxxx
P.O. Box 329
Manchester, NH 03105-0329
or to such other address as either party shall have furnished to
the other in writing in accordance herewith. Notice and
communications shall be effective when actually received by the
addressee.
10. Validity. The invalidity or unenforceability of any
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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, nor shall
the invalidity or unenforceability of a portion of any provision
of this Agreement affect the validity or enforceability of the
balance of such provision. If any provision of this Agreement, or
portion thereof is so broad, in scope or duration, as to be
unenforceable, such provision or portion thereof shall be
interpreted to be only so broad as is enforceable.
11. Arbitration. Any dispute or controversy between the
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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 Chapter 542. Judgment upon
the award may be entered in any court of competent jurisdiction.
12. Withholding. The Company may withhold from any amounts
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payable under this Agreement such Federal, state or local taxes
as shall be permitted to be withheld pursuant to any applicable
law or regulation. The Company may withhold such other amounts as
may be permitted by law.
13. Entire Agreement. This Agreement contains the entire
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understanding of the Company and you with respect to the subject
matter hereof.
14. Applicable Law. This Agreement shall be governed by
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and construed in accordance with the substantive internal law and
not the conflict of law provisions of the State of New Hampshire.
If the terms of the foregoing Agreement are acceptable to
you, please sign and return to the Company the enclosed copy of
this Agreement whereupon this Agreement shall become a valid and
legally binding contract between you and the Company.
Very truly yours,
ENERGY NORTH, INC.
By: __________________________
Xxxxxx X. Xxxxx, Chairman,
Board of Directors
Accepted and Agreed as of
the date first above written
______________________________
Xxxxxxxx X. Xxxxxxxx
