July 14, 1999
Xxxxxx X. Xxxxxxxx
00 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 November 20, 1998 (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 of
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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
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and obligations of the parties hereunder, shall take effect upon
the Effective Date and shall expire upon the first to occur of
(a) the expiration of the Term (as defined below) if a Change of
Control has not occurred during the Term, (b) the date 36 months
after the Change of Control Date, if the Executive is still
employed by the Company as of such later date, or (c) the
fulfillment by the Company of all of its obligations under this
Agreement if the Executive's employment with the Company
terminates within 36 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, 2001.
b. One-Year Evergreen Provision. This Agreement shall be
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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 sixty months from the
effective date of this Agreement or sixty months from December 1st
of the year in which this Agreement was last extended.
4. Change of Control: For the purpose of this Agreement, a
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"Change of Control" shall mean:
(a) The acquisition by an 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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x. Xxxxxxxxx Benefits. If, within three 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;
(iii) to pay you within ten business days
following the Date of Termination an additional lump sum cash
amount equal to the present value of the excess of (a) the
aggregate benefit that would have been paid under the
EnergyNorth, Inc. Retirement Plan for Salaried Employees and the
EnergyNorth, Inc. Supplemental Executive Retirement Plan (the
"Retirement Plans") as in effect on the date of this Agreement,
if you had continued to be employed and to be entitled to service
credit for eligibility and benefit purposes during, and had
terminated on the last day of ("Deemed Termination Date") the
36-month period immediately following the actual Date of
Termination, over (b) the aggregate benefit actually payable
under the Retirement Plans and any successor retirement program
of the Company. For purposes of such calculation, the following
assumptions shall apply: (1) that you would continue to be
compensated during the 36-month period following termination at
annual rate of compensation equal to that used to calculate the
payments provided by 5(a)(i) above, calculated on the basis of
the compensation amount used in the benefit formula under the
Retirement Plans; (2) that you are fully vested and entitled to
receive a benefit under the Retirement Plans if age and service
requirements (based on the age on, and assumed service you would
have earned up to, the Deemed Termination Date) satisfy the
requirements for benefit payments thereunder at any time; and (3)
that the aggregate benefit that would have been paid under the
Retirement Plans is as of either the normal or early retirement
date for which you would have qualified, if you were still
employed on that date, whichever would produce the highest
present value amount payable under this Section 5(a)(iii); and
(iv) 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; and
(v) except to the extent prohibited under either
of the Retirement Plans, allow you at any time during the ninety
day period commencing on the Date of Termination, to retire as an
employee of the Company under the Retirement Plans and under the
policies that apply to retired employees entitling them to post-
retirement healthcare and life insurance benefits and deem the
period commencing on the Date of Termination and ending on the
date of your retirement not to constitute a break in service with
respect to the Retirement Plans, provided that you have satisfied
the age and length-of-service requirements set forth in the
Retirement Plans.
b. Good Reason. If any of the following events occurs
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within three 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 (a) 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:
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(i) conviction of a 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 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
the Disability shall be deemed to be a termination without Cause.
d. Notice of Termination. Any termination by the Company
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(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 (i)
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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 (D) 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
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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 receipt of 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, (b) whether
any such proposed adjustment shall be contested by resisting
payment thereof or by paying the same and seeking a refund
thereof, and (c) 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 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 Control
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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 for 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 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 l50% of
the Prime Rate posted by the BankBoston or any successor entity
thereto.
j. Retirement. If your employment is terminated due to
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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 the
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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 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:
Xxxxxx X. Xxxxxxxx
Xxxxxxx xxxx
Xxxxxxx, XX 00000
If to the Company:
Director 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
-----------
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
----------------
understanding of the Company and you with respect to the subject
matter hereof.
14. Applicable Law. This Agreement shall be governed by
--------------
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,
ENERGYNORTH, INC.
By:________________________________
Xxxxxx X. Xxxxx
Chairman, Board of Directors
Accepted and Agreed as of the date
first above written:
____________________________________
Xxxxxx X. Xxxxxxxx
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