EMPLOYMENT AGREEMENT
between
AQUARION COMPANY
and
XXXXXXX X. XXXXXXX
dated as of July 1, 1997
THIS AGREEMENT, made effective as of July 1, 1997 by and
between AQUARION COMPANY (the "Company"), a Delaware
corporation, and XXXXXXX X. XXXXXXX, of 00 Xxxxxxxx x Xxxx,
Xxxxxxxxx, Xxxxxxxxxxx (the "Executive"),
W I T N E S S E T H T H A T :
WHEREAS:
1. The Executive is a principal officer of the Company
and an integral part of its senior management who participates
in the decision-making process relative to short- and long-
term planning and policy for the Company;
2. The Board of Directors of the Company, at its
meeting on June 24, 1997, determined that it would be in the
best interests of the Company and its shareholders to assure
continuity in the management of the Company's administration
and operations by entering into an employment agreement to
retain the services of the Executive on an extended basis; and
3. The Executive is willing to continue to serve the
Company as a member of its senior management on the terms and
conditions set forth herein.
NOW, THEREFORE, it is hereby agreed by and between the
parties hereto as follows:
1. Employment. The Company agrees to continue the
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Executive in its employ, and the Executive agrees to remain
in the employ of the Company, for the period stated in
Paragraph 3 hereof and upon the other terms and conditions
herein provided.
2. Position and Responsibilities. During the period of
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his employment hereunder, the Executive agrees to serve as
President of the Company for the period for which he is and
shall from time to time be elected, and as its Chief Executive
Officer, and to be responsible for the general management of
the affairs of the Company, reporting directly to the Board of
Directors of the Company. During said period the Executive
agrees to perform such services not
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inconsistent with his position as shall from time to time be requested of
him by the Board of Directors including service, if elected, as an
officer and director of any subsidiary or affiliate of the
Company.
3. Term and Duties.
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(a) Term of Employment. The term of the
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Executive's employment under this Agreement shall be deemed to
have commenced as of the date first above written and shall
continue for a period of 24 full calendar months thereafter,
subject to extension as hereinafter provided. On the first
day of each month following the date first above written, the
term of the Executive's employment under this Agreement shall
be automatically extended unless prior thereto the Company
shall deliver to the Executive or the Executive shall deliver
to the Company written notice that such term of employment
shall not be extended, in which case such term shall end at
the expiration of the then existing term of employment under
this Agreement, including any previous extensions, and shall
not be further extended except by agreement of the Company and
the Executive. Any such automatic extension shall be for one
additional full calendar month (for a total term upon such
extension of 24 full calendar months), unless the Executive
will attain age 65 prior to completion of 24 full calendar
months following the extension date, in which case the term of
the Executive's employment under this Agreement shall
terminate on the last day of the month in which the Executive
attains age 65.
(b) Duties. During the period of employment
------
hereunder and except for illness or incapacity and reasonable
vacation periods (which shall not be less than 20 days in any
calendar year), the Executive's business time, attention,
skill and efforts shall be exclusively
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devoted to the business and affairs of the Company and its subsidiaries;
provided, however, that nothing in this Agreement shall preclude the
Executive from devoting time during reasonable periods
required for:
(i) serving as an officer, director or member of a
committee of any company or organization involving
no conflict of interest with the Company or any of
its subsidiaries or affiliates,
(ii) delivering lectures and fulfilling speaking
engagements, and
(iii) engaging in charitable and community activities,
provided that such activities do not materially
affect or interfere with the performance of the
Executive's obligations to the Company.
4. Compensation.
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(a) For all services rendered by the Executive in
any capacity during employment under this Agreement, including
services as an executive, officer, director, or member of any
committee of the Company or any subsidiary or affiliate
thereof, the Company shall pay the Executive a minimum base
annual salary equal to $240,000. The Board of Directors of
the Company may increase the Executive s minimum base annual
salary during the term of this Agreement, and, when increased,
such higher amount shall then be the minimum base annual
salary hereunder; such minimum base annual salary shall not be
reduced below the highest minimum base annual salary fixed
from time to time by the Board of Directors of the Company.
Such salary shall be payable in accordance with the customary
payroll practices of the Company, but in no event less
frequently than monthly.
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(b) Executive shall be entitled to participate in
the Company s annual incentive plan or any Company incentive
or bonus plan covering some or all of its executive officers
that is in effect during the period of his employment
hereunder and to receive benefits thereunder on a basis
consistent with the overall administration and intent of any
such plan and with past practice, if any, under such plan.
(c) Nothing in this Agreement shall preclude or
affect any rights or benefits that may now or hereafter be
provided for the Executive or for which the Executive may be
or become eligible under any other form of compensation or
employee benefit plan now existing or that may hereafter be
adopted or awarded by the Company or mandated by law.
Specifically, the Executive shall:
(i) participate in the Company's Retirement Plan as well
as any related program under any "excess benefit
plan" that may be adopted during the period of the
Executive's employment hereunder and in which the
Executive is designated by the Company's Board of
Directors to participate (hereinafter referred to
collectively as the "Retirement Program");
(ii) participate to the permitted extent the Executive
wishes in The Employee Savings and Investment Plan
of the Company and any related program under any
excess benefit plan (hereinafter referred to
collectively as the "Thrift and Savings Program");
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(iii) participate in any Employee Stock Ownership Plan
that may subsequently be adopted by the Company;
(iv) participate in the salary continuation program in
the event of death in accordance with Board policy
for Company officers;
(v) participate in the Company's death and disability
benefit plans and its medical, dental and health and
welfare plans; and
(vi) participate in equivalent successor plans of the
Company for which senior management employees are
eligible;
provided, however, that, subject to Paragraph 7(c)(iv),
nothing in this Agreement shall preclude the Company from
amending or terminating any such plan or program, on the
condition that such amendment or termination is applicable to
all of the Company's senior management employees generally.
5. Business Expenses. The Company shall pay or
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reimburse the Executive for all reasonable travel and other
expenses incurred in connection with the performance of the
Executive's duties under this Agreement in accordance with
such procedures as the Company may from time to time
establish. The Company further agrees to furnish the
Executive with a private office and a private secretary and
such other assistance and accommodations, including an
automobile and appropriate club memberships in Connecticut and
North Carolina, as shall be suitable to the character of the
Executive's position with the Company and adequate for the
performance of the Executive's duties under this Agreement.
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6. Additional Benefits. Nothing in this Agreement
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shall affect the Executive's eligibility to participate in all
group health, dental, hospitalization, life, travel or
accident or other insurance plans or programs and all other
perquisites, fringe benefits or retirement plans or additional
compensation, including termination pay programs, which the
Company may now or hereafter, in its sole and absolute
discretion, make available to its senior management employees
generally, and the Executive shall be eligible to receive,
during the period of employment under this Agreement, all
benefits and emoluments for which key employees are eligible
under every such plan, program, perquisite or arrangement to
the extent permissible under the general terms and provisions
thereof.
7. Termination of Employment. Notwithstanding any
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other provision of this Agreement, the Executive's employment
under this Agreement may be terminated:
(a) by the Company, in the event of the Executive's
conviction of, or plea of nolo contendere to, a felony or
crime involving moral turpitude or perpetration of a common
law fraud which has resulted or is likely to result in
material economic damage to the Company or any of its
subsidiaries, by written notice to the Executive, specifying
the event relied upon for such termination;
(b) by either the Company or the Executive, if the
Executive accepts employment or a consulting position with
another company; or
(c) by the Executive, in the event of any (i)
failure to elect or reelect or to appoint or reappoint the
Executive to the offices of President and Chief Executive
Officer of the Company or other material change by the Company
of the Executive's functions, duties or
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responsibilities which change would cause the Executive's position with
the Company to become of less dignity, responsibility, importance or scope
from the position and attributes thereof described in
Paragraph 2 above, (ii) assignment or reassignment by the
Company or by one of its subsidiaries of the Executive to
another place of employment outside of Fairfield County,
Connecticut, (iii) the occurrence of a Change of Control, as
defined in subparagraph (d) below, or (iv) reduction in the
Executive's total compensation and benefits, as specified in
Paragraph 4 above and as currently provided, or other material
breach of this Agreement by the Company or any of its
subsidiaries, by 30 days written notice to the Company,
specifying the event relied upon for such termination and
given within 180 days after such event.
(d) For purposes of this Agreement, a "Change of
Control" shall mean the occurrence of any of
the following events:
(i) the acquisition by any individual, entity, or group
(within the meaning of Section 13(d)(3) or Section
14(d)(2) of the Securities Exchange Act of 1934, as
amended (hereinafter referred to as the "Exchange
Act")) (hereinafter referred to as a "Person") of
beneficial ownership (within the meaning of Rule 1
3d-3 promulgated under the Exchange Act) of twenty
percent (20%)or more of either (A) the then
outstanding shares of common stock of the Company
(hereinafter referred to as the "Outstanding Company
Common Stock"), or (B) the combined voting power of
the then outstanding voting securities of the
Company entitled to vote generally in the election
of directors (hereinafter referred to as the
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"Outstanding Company Voting Securities"); provided,
however, that for purposes of this subparagraph (i),
the following acquisitions shall not constitute a
Change of Control: (A) any acquisition directly from
the Company; (B) any acquisition by the Company; (C)
any acquisition by any employee benefit plan (or
related trust) sponsored or maintained by the
Company or any corporation controlled by the
Company; or (D) any acquisition by any corporation
pursuant to a transaction which complies with
subparagraphs (A), (B), and (C) of subparagraph
(iii) below; or
(ii) individuals who, as of the date of this Plan,
constitute the Board of Directors (hereinafter
referred to as 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 of this Agreement 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 an actual or threatened election contest
with respect to the election or removal of
directors or other actual or threatened
solicitation of proxies or consents by or on
behalf of a Person other than the Board;
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(iii) consummation of a reorganization, merger,
or consolidation or sale or other
disposition of all or substantially all of
the assets of the Company or the
acquisition of assets of another
corporation (hereinafter referred to as a
"Business Combination"), in each case,
unless, following such Business
Combination, (A) 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
Business Combination benefically own, directly or
indirectly, more than eighty percent (80%) of,
respectively, the then outstanding shares of
common stock and the combined
voting power of the then outstanding
voting securities entitled to vote
generally in the election of directors, as
the case may be, of the corporation
resulting from such Business Combination
(including, without limitation, a
corporation which as a result of such
transaction owns the Company or all or
substantially all of the Company's assets
either directly or through one or more
subsidiaries) in substantially the same
proportions as their ownership,
immediately prior to such Business
Combination of the Outstanding Company
Common Stock and Outstanding Company
Voting Securities, as the case may be, (B)
no Person (excluding any corporation
resulting from such Business Combination
or any employee benefit plan (or related
trust) of the Company or such corporation
resulting from such
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Business Combination) beneficially owns, directly
or indirectly, twenty percent (20%) or more of,
respectively, the then outstanding shares
of common stock of the corporation
resulting from such Business Combination
or the combined voting power of the then
outstanding voting securities of such
corporation except to the extent that such
ownership existed prior to the Business
Combination, and (C) at least a majority
of the members of the board of directors
of the corporation resulting from such
Business Combination were members of the
Incumbent Board at the time of the
execution of the initial agreement, or of
the action of the Board, providing for
such Business Combination;
(iv) approval by the shareholders of the Company of
a complete liquidation or dissolution of the
Company.
8. Payments Upon Termination of Employment. In the
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event of any termination by the Executive pursuant to
Paragraph 7(c) above, or in the event the Executive's
employment under this Agreement is terminated by the Company
for any reason other than one of those specified in Paragraphs
7(a) or 7(b) above, the Company shall, as liquidated damages
or severance pay, or both, promptly pay to the Executive and
provide the Executive and the dependents, beneficiaries and
estate of the Executive as follows:
(a) The Company shall pay the Executive in equal
monthly installments over the unexpired portion of the term of
employment provided for in Paragraph 3(a) above or, at the
Company's option, in a lump sum calculated without any
discount, a cash amount equal to the
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excess of (i) the salary provided in Paragraph 4(a) above, including
the increases therein provided, for the unexpired portion of the term of
employment provided for in Paragraph 3(a) above (commencing
with the month in which termination shall have occurred) less
the amounts, if any, the Executive would have paid in cash in
respect of employee benefits provided for in Paragraph 4(c)(v)
above if the Executive were still employed, over (ii) the
amounts, if any, paid to the Executive pursuant to any
severance or termination pay program or arrangement of the
Company or any of its subsidiaries; provided, however, if the
Executive s termination occurs after a Change of Control, such
payment shall be in the form of a lump sum, calculated without
any discount.
(b) The Company shall also pay the Executive in a
lump sum a cash amount equal to the average incentive award
earned by the Executive in accordance with the provisions of
the Company s annual incentive plan over the two calendar
years immediately preceding the Executive s termination.
(c) The Company shall also pay the Executive a lump
sum cash amount equal to the sum of (i) and (ii), where (i) is
the present value of the aggregate contributions or payments,
if any, that would have been made by the Company or any of its
subsidiaries under the Thrift and Savings Program and Employee
Stock Ownership Plan described in Paragraph 4(c)(ii) and (iii)
above or any successor program of the Company in effect on the
date on which termination shall have occurred, if the
Executive had continued to be employed, and to participate on
a fully vested basis in the Thrift and Savings Program and
Employee Stock Ownership Plan or such successor programs to
the same extent as the Executive participated for
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the last month during which the Executive was permitted to participate,
during the unexpired portion of the term of employment
provided for in Paragraph 3(a) above at an annual rate of
compensation equal to that used to calculate the payments
provided by Paragraph 8(a) above; and (ii) is the value, if
any, of that portion of the Executive s accounts under the
Thrift and Savings Program and Employee Stock Ownership Plan
or such successor programs that would not have been forfeited
upon the Executive s termination of employment if the
Executive s service with Industrial and Environmental
Analysts, Inc. had been taken into account for vesting
purposes under said Thrift and Savings Program, Employee Stock
Ownership Plan or successor plans.
(d) For purposes of calculating the lump sum cash
payments provided by Paragraph 8 (c) above, present value
shall be determined by using a discount factor equal to one
percentage point below the prime rate as published in The Wall
Street Journal as of the date on which termination shall have
occurred.
(e) For the unexpired portion of the term of the
Executive s employment provided for in Paragraph 3(a) above
(commencing with the month in which termination shall have
occurred), the Executive shall continue to be entitled to all
employee benefits provided for in Paragraph 4(c)(v) above as
may be in effect on the date of termination, as if the
Executive were still employed during such period under this
Agreement, with benefits based upon the compensation used to
calculate the payments provided by Paragraph 8(a) above, and
if and to the extent that such benefits shall not be payable
or provided under any such plan, the Company shall pay or
provide such benefits on an individual basis. The medical,
dental, health and
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welfare benefits provided for in Paragraph
4(c)(v) above, in accordance with this Paragraph 8(e) shall be
secondary to any comparable benefits provided by another
employer provided that an appropriate refund is made of any
reduction in the amount paid pursuant to Paragraph 8(a)(i)
which had assumed that such benefits would be primary.
(f) All stock options granted to the Executive
pursuant to the Company's stock option plan shall become
immediately vested and exercisable, to the extent permitted by
said plan.
9. Supplemental Pension Benefit.
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(a) In recognition of the Executive s past service
to the Company, upon termination of the Executive s employment
with the Company for any reason during the term of this
Agreement, the Company shall pay to the Executive an annual
supplemental pension benefit having a value equal to the
excess of (i) over (ii), where:
(i) is the aggregate annual benefit that would be
payable to the Executive under the Retirement
Program described in Paragraph 4(c)(i) above as a
life annuity as of the date of termination of the
Executive s employment, calculated by: (A) giving
the Executive credit for his service with Industrial
and Environmental Analysts, Inc. for eligibility,
vesting and benefit purposes under the Retirement
Program; (B) crediting the Executive with service
for the unexpired portion of the term of the
Executive s employment provided for in Paragraph
3(a) above if the Executive is entitled to payments
upon termination of employment pursuant to Paragraph
8 above; and (C) doubling the Executive's
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service, as increased pursuant to (A) and (B) above, for
benefit purposes under the Retirement Program,
including without limitation, for purposes of
determining any reductions in benefits under the
Retirement Program on account of the Executive's
retirement before having attained normal retirement
age under the Retirement Program; and
(ii) is the annual benefit payable to the Executive
under the Retirement Program as a life annuity as of
the date of the Executive s termination of
employment, calculated in accordance with the terms
of the Retirement Program.
If the Executive is entitled to credit for service for the
unexpired portion of the term of the Executive s employment
pursuant to clause (a)(i)(B) of this Paragraph 9, for purposes
of calculating the Executive s supplemental pension benefit
under this Paragraph 9, the Executive shall be presumed to
have continued employment for the unexpired portion of the
term of the Executive s employment at an annual rate of
compensation equal to the sum of the amounts used to calculate
the payments provided by clauses (a) and (b) of Paragraph 8
above.
(b) The actuarial equivalent of the supplemental
pension benefit payable under clause (a) of this Paragraph 9
shall be paid in the same form of benefit applicable to the
Executive and his joint annuitant, if any, under the
Retirement Program and shall commence at the same time payment
to the Executive commences under the Retirement Program.
Actuarial equivalency shall be determined in the same manner
as provided under the Retirement Program.
(c) In the event of the Executive s death before
payment of the supplemental pension benefit under this
Paragraph 9 commences, if the spouse of the Executive is
entitled to a
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death benefit under the Retirement Program, the
Executive s spouse shall be entitled to receive from the
Company a death benefit with respect to the supplemental
pension benefit provided under this Paragraph 9 equal to the
difference between (i) the death benefit that would be payable
to the Executive s spouse under the Retirement Program as of
the date of the Executive s death if such benefit were
calculated based on the benefit described in clause (a) of
this Paragraph 9; and (ii) the death benefit actually payable
to the Executive s spouse under the Retirement Program as of
the date of the Executive s death, calculated in accordance
with the terms of the Retirement Program. Notwithstanding
anything in this Agreement to the contrary, no death benefit
other than that set forth in this clause (c) shall be payable
with respect to the supplemental pension benefit payable under
this Paragraph 9 if the Executive dies prior to the
commencement of benefit payments under this Paragraph 9. In
the event of the Executive s death after payment of the
supplemental pension benefit under this Paragraph 9 has
commenced, payment shall be made as specified pursuant to the
benefit arrangement in force with respect to the deceased
Executive.
10. Section 280G Limit. Notwithstanding any other
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provision of this Agreement, in the event that any payment or
benefit received or to be received by the Executive, whether
payable pursuant to the terms of this Agreement or any other
plan, arrangement or agreement with the Company (collectively,
the "Total Payments") would, in the determination of the
independent certified public accounting firm then retained by
the Company (the "Tax Advisor"), not be deductible (in whole
or in part) by the Company as a result of Section 280G of the
Internal Revenue Code of 1986, as amended (the "Code"), or any
successor to such Section,
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payments and benefits pursuant to this Agreement shall be reduced until
no portion of the Total Payments is not deductible as a result of
Section 280G of the Code, or payments and benefits pursuant to this
Agreement are reduced to zero. For purposes of this limitation, (a) no
portion of the Total Payments the receipt of which the
Executive, in the determination of the Tax Advisor, shall have
effectively waived prior to the date which is 15 days
following termination of employment and prior to the earlier
of the date of constructive receipt and the date of payment
thereof shall be taken into account; and (b) any reduction in
the payments and benefits pursuant to this Paragraph shall be
made from the payments and benefits to be made pursuant to
clauses (a), (b), (c), (e) and (f) of Paragraph 8 and clause
(a) of Paragraph 9, in such order as may be determined by the
Executive, except to the extent that such payments and
benefits, in the determination of the Tax Advisor, are
reasonable compensation within the meaning of Section 280G of
the Code. The determination of the Tax Advisor as to the
deductibility of the Total Payments shall be completed not
later than 45 days following the Executive's termination of
employment, and such determination shall be communicated in
writing to the Company, with a copy to the Executive, within
said 45-day period. The determination of the Tax Advisor as
to the deductibility of the Total Payments shall be deemed
conclusive and binding on the Company and the Executive. The
Company shall pay the fees and other costs of the Tax Advisor
hereunder.
11. Source of Payments; Interest. All payments provided
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for in Paragraphs 4, 5, 6, 8 and 9 above shall be paid in cash
from the general funds of the Company. Any benefits payable
under this Agreement shall be "unfunded," as that term is used
in any applicable sections of the
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Employee Retirement Income Security Act of 1974, as amended, with respect
to unfunded arrangements maintained primarily for the purpose of providing
deferred compensation to a select group of management or
highly compensated employees. The Company shall not be
required to segregate or earmark any of its assets for the
benefit of the Executive or his spouse or other beneficiary,
and each such person shall have only a contractual right
against the Company for benefits under this Agreement. Any
payments not made within 30 days after termination of the
Executive s employment or such time as they may otherwise be
due hereunder shall bear interest at the interest rate used to
establish the discount factor provided for in Paragraph 8(d).
12. Litigation Expenses.
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In the event of any litigation, arbitration or
other proceeding between the Company and the Executive with
respect to the subject matter of this Agreement and the
enforcement of rights hereunder, the Company shall reimburse
the Executive for all reasonable costs and expenses relating
to such litigation, arbitration or other proceeding, including
reasonable attorneys' fees and expenses, provided that such
litigation, arbitration or proceeding results in any:
(i) settlement requiring the Company to make a payment
to the Executive, or
(ii) judgement or order in favor of the Executive
enforcing any provision of this Agreement or
awarding any payment or other consideration to the
Executive, regardless of whether such
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judgement or order is subsequently reversed on appeal or in a
collateral proceeding.
In no event shall the Executive be required to reimburse the
Company for any of the costs and expenses relating to such
litigation, arbitration or other proceeding. The obligation of
the Company under this Paragraph 10 shall survive the
termination for any reason of this Agreement (whether such
termination is by the Company, by the Executive, upon the
expiration of this Agreement or otherwise).
13. Income Tax Withholding. The Company may withhold
----------------------
from any payments made under this Agreement all federal,
state, city or other taxes as shall be required pursuant to
any law or governmental regulation or ruling.
14. Non-Disclosure of Proprietary Information. The
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Executive will gain, with respect to the Company and its
affiliates, detailed knowledge of all affairs, trade secrets,
discoveries, plans, development work in process, cost
information, outstanding bid and bid proposal information,
customer requirements, contractual provisions, employee
capabilities and proposed marketing initiatives, other
confidential information and the like (the "Proprietary
Information") in the course of the Executive's employment
hereunder and under any prior employment agreement with the
Company or an affiliate, and the Executive will necessarily
continue to have the fullest knowledge of such matters.
Disclosure to or utilization of such knowledge and Proprietary
Information to any person, firm, business, organization,
corporation, agency or other entity, whether or not engaged in
any line of business competing in any respect with the
business of the Company as now constituted, or as the same may
be developed will
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cause irreparable injury and damage to the
business of the Company. The Executive covenants and agrees
that he will not at any time, during and after the period of
his employment hereunder, except as may be required by law,
disclose any of the Proprietary Information to, or utilize
such information on behalf of, any person, firm, business,
organization, corporation, agency or other entity (other than
an employee or agent of the Company entitled to receive the
same). The Executive's obligations under this Paragraph 14
shall not apply to information which is or becomes part of the
public domain through no fault of the Executive. Further,
upon termination of his employment hereunder, the Executive
agrees that he will deliver to the Company, or any affiliated
company designated by the Company, any and all records, files,
lists or other documents containing information within the
scope of the foregoing description, including, without
limitation, the Executive's records of contracts with
customers and potential customers, and all copies of the same,
and shall not retain any copies of Proprietary Information.
15. Entire Understanding. This Agreement contains the
--------------------
entire understanding between the Company and the Executive
with respect to the subject matter hereof and supersedes any
prior employment agreement between the Company and the
Executive, including the employment agreement dated as of
October 1, 1995, except that this Agreement shall not affect
or operate to reduce any benefit or compensation inuring to
the Executive of a kind elsewhere provided and not expressly
provided in this Agreement.
16. Severability. If, for any reason, any one or more
------------
of the provisions or part of a provision contained in this
Agreement shall be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provision or part
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of a provision of this Agreement not held so invalid, illegal
or unenforceable, and each other provision or part of a
provision shall to the full extent consistent with law
continue in full force and effect. If this Agreement is held
invalid or cannot be enforced, then to the full extent
permitted by law any prior agreement between the Company and
the Executive shall be deemed reinstated as if this Agreement
had not been executed.
17. Consolidation, Merger, or Sale of Assets. Nothing
----------------------------------------
in this Agreement shall preclude the Company from
consolidating or merging into or with, or transferring all or
substantially all of its assets to, another corporation or
acquiring entity which assumes this Agreement and all
obligations and undertakings of the Company hereunder. Upon
such a consolidation, merger or transfer of assets and
assumption, the term, "the Company", as used herein shall mean
such other corporation or acquiring entity and this Agreement
shall continue in full force and effect.
18. Notices. All notices, requests, demands and other
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communications required or permitted hereunder shall be given
in writing and shall be deemed to have been duly given if
delivered or mailed, postage prepaid, first class as follows:
(a) to the Company:
Aquarion Company
000 Xxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxx 00000
Attention: Secretary
(b) to the Executive:
Xxxxxxx X. Xxxxxxx
00 Xxxxxxxxx Xxxx
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Xxxxxxxxx, Xxxxxxxxxxx 00000
or to such other address as either party shall have previously
specified in writing to the other.
19. No Attachment. Except as required by law, no right
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to receive payments under this Agreement shall be subject to
anticipation, commutation, alienation, sale, assignment,
encumbrances, charge, pledge, or hypothecation or to
execution, attachment, levy, or similar process or assignment
by operation of law, and any attempt, voluntary or
involuntary, to effect any such action shall be null, void and
of no effect.
20. Binding Agreement. This Agreement shall be binding
-----------------
upon, and shall inure to the benefit of, the Executive and the
Company and their respective permitted successors and assigns.
21. Modification and Waiver. This Agreement may not be
-----------------------
modified or amended except by an instrument in writing signed
by the parties hereto. No term or condition of this Agreement
shall be deemed to have been waived, nor shall there be any
estoppel against the enforcement of any provision of this
Agreement except by written instrument signed by the party
charged with such waiver or estoppel. No such written waiver
shall be deemed a continuing waiver unless specifically stated
therein, and each such waiver shall operate only as to the
specific term or condition waived and shall not constitute a
waiver of such term or condition for the future or as to any
act other than that specifically waived.
22. Headings of No Effect. The paragraph headings
---------------------
contained in this Agreement are included solely for
convenience of reference and shall not in any way affect the
meaning or interpretation of any of the provisions of this
Agreement.
-22-
23. Governing law. This Agreement and its validity,
-------------
interpretation, performance, and enforcement shall be governed
by the laws of the State of Connecticut.
IN WITNESS WHEREOF, the Company has caused this Agreement
to be executed and its seal to be affixed hereunto by its
officers thereunto duly authorized, and the Executive has
signed this Agreement, all as of the date first above written.
AQUARION COMPANY
ATTEST:
/S/XXXXX X. XXXXXXXX By: /S/XXXXXX X. XXXXXXX
------------------------- -------------------------
Secretary Its Chairman of the Board
/S/XXXXXXX X. XXXXXXX
------------------------
XXXXXXX X. XXXXXXX
HART01-146489-2
44519-80130
March 23, 1998 4:29 pm
