EXHIBIT 10.24
SEVERANCE AGREEMENT AND RELEASE
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This SEVERANCE AGREEMENT AND RELEASE ("Agreement") is made by and between
Xxxxxxx X. Xxxxxxxx of Berlin, Connecticut (hereinafter referred to as the
"Employee") and YANKEE ENERGY SYSTEM, INC. ("Company"), in light of the
following circumstances:
WHEREAS, Employee is currently employed by Company in the position of
President, Yankee Energy Services Company; and
WHEREAS, Company is eliminating, consolidating or restructuring various
positions in connection with a reorganization of its operations; and
WHEREAS, Employee and Company have agreed the employment relationship
between them shall terminate, effective as of the date set forth in this
Agreement; and
WHEREAS, to avoid the costs, burdens and uncertainties of any disputes
which might exist or which may arise, Employee and Company now wish to resolve,
compromise and finally settle any and all matters related to Employee's
employment with and separation from Company;
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein, Employee and Company, acting of their own free will, hereby
agree as follows:
1. Employee's position is eliminated as of September 1, 1998 (the
"Termination Date"). The Termination Date shall be Employee's last day of
employment with Company, and Employee shall not be deemed an employee of Company
for any purpose after such date.
2. Company will provide severance payments and benefits to Employee as
set forth in this paragraph.
(a) Company shall pay Employee a severance benefit equal to one year
of Employee's current annual salary. Such severance benefit shall be paid to
Employee on a weekly basis through December 31, 1998 and then a lump sum payment
for the remainder in January.
(b) $5,000 in lieu of Company car and health benefits.
(c) Company shall select and pay for an outplacement program for
Employee for a maximum period of twelve (12) months, commencing on or about the
Termination Date.
(d) $20,000 lump sum payment;
(e) All severance payments shall be subject to tax withholding as
required by law, as well as other deductions authorized by Employee, and shall
be paid to Employee in accordance with Company's normal payroll cycle. Employee
acknowledges that, except as set forth above, no payments of any kind shall be
owed to him by Company, whether characterized as salary, severance payments,
consulting fees or in any other manner.
(f) Employee may exercise his vested stock options for a period of
one month through October 1, 1998 in the amounts set forth in the attachment
hereto.
3. For and in consideration of the payments and benefits described in
Paragraph 2 above, Employee, for him or herself, and for his or her heirs,
executors, administrators, successors and assigns, covenants not to xxx, and
knowingly releases and forever discharges Company, together with its parent,
subsidiaries, affiliates, officers, directors, agents, employees, and
representatives ("Released Parties") of and from any and all claims, demands,
obligations, liabilities and causes of action, of whatsoever kind or nature in
law, equity or otherwise, which Employee now has or ever had against Company or
any of the Released Parties, (including, but not limited to, state wrongful
discharge, tort, defamation, breach of contract and breach of the duty of good
faith and fair dealing, and causes of action and claims under the Employee's
Retirement Income Security Act of 1974, 29 U.S.C. '1001 et seq., Title VII of
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the Civil Rights Act of 1964, 42 U.S.C. ''2000e et seq., the Civil Rights Act of
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1991, 42 U.S.C. '' 1981 et seq., the Connecticut Fair Employment Practices Act,
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Conn. Gen. Stat. '45a-51 et seq., the Americans with Disabilities Act, 42 U.S.C.
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' 12101 et seq., the Age Discrimination in Employment Act, 29 U.S.C. ''621 et
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seq., and all other federal, state or local antidiscrimination laws, or workers'
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compensation laws, ordinances or regulations), for any losses, injuries or
damages (including, but not limited to, back pay, front pay, liquidated,
compensatory or punitive damages, attorneys' fees, litigation costs and any
federal or state income tax or social security tax obligations for which
Employee may be liable as a result of this Agreement), resulting from or arising
out of or in any way connected with Employee's employment relationship with
Company or Employee's separation from Company's employ.
4. Nothing in this Agreement shall be construed to constitute a waiver by
Employee of:
(a) Employee's right to seek enforcement of Company's obligations
under this Agreement.
(b) Employee's rights under the unemployment compensation laws of the
State of Connecticut. Company agrees that it will not contest any claims filed
by Employee for unemployment compensation benefits, so long as Employee is
available for and is actively seeking suitable employment.
5. This Agreement sets forth the entire Agreement between Employee and
Company, and fully supersedes any and all prior agreements or understandings,
written or oral, between the parties pertaining to Employee's employment with
and separation from Company. Employee and Company expressly acknowledge and
agree that neither party will make any claim or demand and each hereby waives
any rights either may now have or may
hereafter have or claim to have, based upon any alleged oral alteration,
amendment, modification or any other alleged change in this Agreement.
6. The validity, effect and operation of this Agreement shall be
determined by the laws of the State of Connecticut. This Agreement shall be
interpreted in accordance with the plain meaning of its terms and not strictly
for or against either of the parties hereto.
7. Should Employee commence or prosecute any action or proceeding
contrary to the provisions of this Agreement, he or she agrees to indemnify
Company for all costs, including court costs and reasonable attorneys' fees,
incurred by Company in the defense of such action or in establishing or
maintaining the application or validity of this Agreement or the provisions
thereof. If any of the provisions, terms or clauses of this Agreement are
declared illegal, unenforceable or ineffective in a legal forum or by operation
of law, those provisions, terms and clauses shall be deemed severable, such that
all other provisions, terms and clauses of this Agreement shall remain valid and
binding upon both parties, provided, however, that Company's obligations to make
the payments and provide the benefits set forth in paragraph 2 above is
expressly conditioned on the validity of the release set forth in paragraph 3
above in its entirety. In the event Employee challenges the validity of such
release in any respect, he or she will be liable to Company for the repayment of
such sums. Except as otherwise provided specifically in this Agreement, in the
event any party to this Agreement claims that the other party has failed to
comply with the terms of this Agreement, the remedy for the party claiming the
breach shall be an appropriate legal action to require the other party to comply
with the Agreement and to obtain damages resulting from the breach, including
all costs incurred by the non-breaching party, including court costs and
reasonable attorney's fees in prosecuting any such legal action.
8. Employee acknowledges and agrees that:
(a) Employee was given twenty-one (21) days from the date of his or
her receipt of this Agreement to consider this Agreement;
(b) Employee has read this entire Agreement and fully understands its
terms;
(c) Employee was advised to consult with an attorney prior to signing
this Agreement, and has had the opportunity to review this Agreement with an
attorney;
(d) Employee is voluntarily entering into this Agreement; and
(e) Employee would not otherwise be entitled to the payments and
benefits provided by this Agreement under subparagraphs 2(b), (c) and (d).
(f) Employee has been privy to the Company's and its Parent's and
affiliates' confidential, proprietary and trade secret information, and that
Employee has an obligation and fiduciary duty not to use such information for
personal benefit, that such information is not to be disclosed to anyone outside
the Company, and that Employee has returned any such confidential information in
whatever form it existed.
(g) Employee understands and agrees that for a period of one year
Employee shall not, undertake or engage in any employment, occupation or
business enterprise that is competitive with the HVAC service business and
activities of the Company within the geographic market of the Company defined as
Connecticut and Massachusetts and will not solicit any customers of the Company
or otherwise attempt to disrupt the business activities of the Company without
the consent of the Company which consent can be withheld by the Company in its
sole discretion.
The Employee and the Company acknowledge and agree that they have
attempted to limit Employee's ability to compete with the Company only to a
reasonable extent. It is the desire and intent of the parties hereto that the
provisions of this covenant shall be enforced to the fullest extent permissible
under the laws and public policies applied in each jurisdiction in which
enforcement is sought. However, the Company and Employee agree that if a court
finds that the scope of any one or more of the provisions shall, for any reason,
be invalid, illegal, excessively broad, unreasonable, or unenforceable in any
respect, then the court may modify the covenant to render it reasonable.
9. This Agreement shall not become effective or enforceable until seven
(7) days following its execution by Employee. Prior to the expiration of this
seven-day period, Employee may revoke assent to this Agreement by giving written
notice to Company's President.
10. Employee and Company acknowledge that the terms of this Agreement
constitute confidential information that may be considered proprietary
information to either or both parties, and, except as otherwise set forth
herein, agree to not disclose the terms hereof to any third party.
11. Employee and Company agree not to libelously or slanderously either
disparage or do harm to the reputation of each other,
12. Any dispute regarding the validity, effect, operation, interpretation
or application of this Agreement shall be resolved by arbitration under the
American Arbitration Association's rules and procedures for resolution of
employment disputes. The results of such arbitration shall be final and binding
unless otherwise provided by law.
13. If either the Company or Employee shall waive any breach of any
provision of this Agreement, neither the Company nor Employee shall be deemed to
have waived any preceding or succeeding breach of the same or any other
provision of the Agreement.
IN WITNESS WHEREOF, the aforementioned parties, intending to be legally
bound hereby, have executed this Agreement this 10th day of September, 1998.
/s/Xxxxxxx X. Xxxxxxxx
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Employee
YANKEE ENERGY SYSTEM, INC.
By: /s/Xxxxx Xxxxx
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