EXHIBIT 10(ff)
PRIVILEGED & CONFIDENTIAL
AGREEMENT
BETWEEN
NATIONAL GRID USA SERVICE COMPANY, INC.
AND
XXXXXXX X. XXXXXXXX
DATED MAY 1, 2007
REVISED JUNE 1, 2007
REVISED JUNE 20, 2007
TABLE OF CONTENTS
1.0 Separation...............................................................................................1
2.0 Severance Benefits.......................................................................................2
3.0 General Release..........................................................................................4
4.0 Confidential Information.................................................................................4
5.0 Non-Disparagement........................................................................................5
6.0 Confidentiality of Agreement.............................................................................5
7.0 Company Property.........................................................................................6
8.0 Denial of Liability......................................................................................6
9.0 Validation...............................................................................................6
10.0 Applicable Law...........................................................................................7
11.0 Captions and Paragraph Headings..........................................................................7
12.0 Waiver...................................................................................................7
13.0 Counterparts.............................................................................................7
14.0 Survival of Covenants....................................................................................7
15.0 Tax Matters..............................................................................................7
16.0 Representations..........................................................................................8
17.0 Voluntary Assent.........................................................................................8
18.0 Entire Agreement.........................................................................................8
19.0 Indemnification..........................................................................................9
20.0 Release of Claims........................................................................................9
General Release - Exhibit A
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AGREEMENT
This Separation and Release Agreement ("Agreement") dated May 1, 2007,
is made and entered into by and between National Grid USA Service Company, Inc.
hereinafter referred to as ("the Company") and Xxxxxxx X. Xxxxxxxx hereinafter
referred to as ("the Executive" or "Xx. Xxxxxxxx").
WHEREAS, as a result of the change in leadership and direction of
National Grid USA, it has been determined that Xx. Xxxxxxxx'x services will no
longer be needed by the Company.
WHEREAS, the parties desire to terminate the relationship in a fair and
equitable manner.
NOW THEREFORE, in consideration of the promises, covenants and
representations set forth herein, the severance package being provided to Xx.
Xxxxxxxx by the Company, and other good and valuable consideration, the receipt
and sufficiency of which hereby are acknowledged, the parties agree as follows:
1.0 Separation. Xx. Xxxxxxxx agrees to terminate his employment
with the Company as of August 31, 2007 (Date of Termination). As of that date
Xx. Xxxxxxxx will no longer be an employee of the Company. Between May 1, 2007,
and his Date of Termination, Xx. Xxxxxxxx will be paid his salary and benefits,
but Xx. Xxxxxxxx will no longer remain involved in any aspect of the business of
the Company or its affiliates unless requested by the Company; nor will he,
without the prior written consent of an officer of the Company, engage in other
employment ("Garden Leave"). During the Garden Leave, Xx. Xxxxxxxx will receive,
in accordance with the terms of the plans, any payments with respect to Plan
Year ended March 30, 2007 under: National Grid USA's
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goals and National Grid USA Companies Incentive Compensation Plan and Incentive
Share Plan (Incentive Compensation Plan). Payments under the National Grid
Performance Share Plan, National Grid Share Option Plan, National Gris USA
Companies' Deferred Compensation Plan and National Grid USA Companies Executive
Supplemental Retirement Plan, along with any other normal post-termination
compensation and benefits due Xx. Xxxxxxxx, if applicable, will be paid in
accord with the terms and conditions of said plans, programs or arrangements.
The Company agrees that Xx. Xxxxxxxx qualifies as a "good leaver," as that term
is applied relative to the National Grid Performance Share Plan and the National
Grid Share Option Plan.
2.0 Severance Benefits.
2.1 Provided Xx. Xxxxxxxx signs and returns the General Release to
this Agreement, a copy of which is attached hereto as Schedule A and
incorporated by reference as if fully set herein, within five (5) days after his
Date of Termination and does not revoke it within seven (7) days of execution,
the Company agrees to provide him with the severance benefits set forth in
Sections 2.2 through 2.5 below. Receipt of the benefits set forth in Sections
2.2 through 2.5 below are in lieu of any severance payments/benefits which Xx.
Xxxxxxxx might otherwise be entitled to receive under National Grid USA
Companies' Executive Severance Plan (Executive Severance Agreement) or any other
severance plan or, severance arrangement, but are not in lieu of Xx. Xxxxxxxx'x
benefits described in paragraph 1.0 above or any qualified retirement plan in
which Xx. Xxxxxxxx is a participant.
2.2 The Company shall pay to Xx. Xxxxxxxx a lump sum severance
payment, applicable taxes withheld, in cash, within ten (10) business days after
the General
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Release becomes irrevocable, equal to two (2) times the Executive's annual
base salary in effect on April 30, 2004 (Base Pay), and two (2) times the
product of his Base Pay times the average total plan award percentage under
National Grid USA Companies' Incentive Compensation Plan for plan years 2005,
2006 and 2007 plus a prorated bonus award for fiscal year 2008 which equals one
(1) times the Executive's Base Pay times forty five percent (45%) times five
twelfths (5/12).
2.3 The Company shall pay to Xx. Xxxxxxxx a lump sum payment,
applicable taxes withheld, within ten (10) business days after the General
Release becomes irrevocable, in an amount equal to eighteen (18) times the
Company's (employer) monthly contribution toward the cost of the health plan in
which Xx. Xxxxxxxx was enrolled immediately prior to his Date of Termination
(grossed up to include applicable payroll withholding taxes on such payment).
2.4 The Company, at its sole option, shall provide Xx. Xxxxxxxx
with (1) life insurance substantially similar to the life insurance coverage in
effect on his Date of Termination for an additional eighteen (18) months after
his Date of Termination; or (2) a lump sum payment, applicable taxes withheld in
an amount equal to eighteen (18) months premiums for equivalent coverage
(grossed up for taxes).
2.5 The Company shall provide Xx. Xxxxxxxx with outplacement services
of the Company's choice for eighteen (18) months from the commencement of Xx.
Xxxxxxxx'x Garden Leave.
2.6 In the event Xx. Xxxxxxxx fails to sign and return the General
Release or revokes the General Release within the seven (7) day revocation
period, Xx. Xxxxxxxx'x employment will still be terminated as of his Date of
Termination but instead of the
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severance benefits provided in Section 2.2 through 2.5 above, the Company will
only provide him with a severance payment of six (6) weeks Base Pay.
3.0 General Release.
3.1 In consideration of the severance benefits provided by the
Company which Xx. Xxxxxxxx agrees he would not otherwise be entitled to receive
and which Xx. Xxxxxxxx agrees is in full satisfaction of any compensation or
severance benefits pertaining to his employment and separation from the Company,
Xx. Xxxxxxxx agrees within five (5) days after his Date of Termination, to
execute and return to the Company two (2) originals of the General Release.
4.0 Confidential Information. Xx. Xxxxxxxx agrees to keep secret
and retain in the strictest confidence all confidential matters which relate to
the Company, including all past, present and future subsidiaries, parents,
affiliated companies, successors and assigns and all, present and future
fiduciaries, trustees, directors, officers, agents and employees of any such
companies (hereinafter referred to as "the Company and their Related Persons")
including, without limitation, customer lists, client lists, trade secrets,
pricing policies and other business affairs of the Company and their Related
persons, learned by him while an employee of the Company and their Related
Persons; and shall not disclose any such confidential matters to anyone outside
the Company and their Related Persons without the prior written consent of an
officer of the Company except when required to do so by a court of law, by any
governmental agency having supervisory authority over the business of the
Company, its parents or affiliates or by any administrative or legislative body
(including a committee thereof) with apparent jurisdiction to order him to
divulge, disclose or make accessible such information. Mr.
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Xxxxxxxx agrees to give the Company advance written notice of any disclosure
referenced above and to cooperate with any efforts by the Company to limit the
extent of such disclosure. Confidential information shall not include
information that: (1) was legitimately in Xx. Xxxxxxxx'x possession or was
legitimately known to Xx. Xxxxxxxx prior to receipt from the Company and their
Related Persons; or (2) was, at the time of disclosure by Xx. Xxxxxxxx, in the
public domain or thereafter enters the public domain without any action by Xx.
Xxxxxxxx; or (3) was lawfully received by Xx. Xxxxxxxx from a third party
without restrictions on any disclosure or use of said Confidential Information;
or (4) was developed independently by Xx. Xxxxxxxx without use of any
Confidential Information.
5.0 Non-Disparagement. Xx. Xxxxxxxx agrees not to make any false,
disparaging or derogatory statements to anyone within or outside the Company
regarding the Company and their Related Persons; and the Company agrees not to
make any false, disparaging or derogatory statements about Xx. Xxxxxxxx within
or outside the Company.
6.0 Confidentiality of Agreement. Xx. Xxxxxxxx agrees that he will
keep the terms, amount and fact of this Agreement completely confidential,
except that he may discuss this Agreement with his financial and/or tax advisor,
attorney and family provided they agree to keep said information confidential
and not disclose it to others.
Notwithstanding the above, Xx. Xxxxxxxx may disclose information
concerning this Agreement and matters relating to his employment with the
Company in a legal proceeding to enforce its terms or as a defense to a claim,
or in response to a lawful subpoena compelling him to provide such information
to a court, administrative body or
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law enforcement agency provided that Xx. Xxxxxxxx agrees to notify the Company
upon receipt of a subpoena and prior to disclosing such information.
The Company agrees to handle this Agreement in a confidential manner.
It will not disclose the terms, amount or fact of this Agreement to anyone
outside of the Company except to those who need to know to develop or effectuate
this Agreement, in a legal proceeding to enforce its terms or as a defense to
any claim, for good governance disclosure purposes, or as otherwise required by
law. In addition, the Company will not disclose the terms, amount or fact of
this Agreement to anyone inside the Company except to those individuals who need
to know for business reasons or in order to develop or effectuate this
Agreement.
7.0 Company Property. Xx. Xxxxxxxx agrees to return all Company
property, including but not limited to, his badge, secure ID, card access entry
key, keys, records, files, and software upon termination of his employment, and
will not retain any copies, duplicates, reproductions or excerpts thereof; nor
will Xx. Xxxxxxxx show or give any of the above, which at any time was in his
possession, to any third party who is not an employee of the Company and their
Related Persons.
8.0 Denial of Liability. Neither this Agreement nor anything
contained herein shall be construed as an admission by either party of any
wrongdoing or unlawful conduct whatsoever with respect to the other.
9.0 Validation. In the event any portion of this Agreement is
deemed invalid, against public policy, void or otherwise unenforceable by a
court of law, the parties shall negotiate an equitable adjustment in the
affected provision. However, the validity and enforceability of the remaining
portions shall otherwise be fully enforceable.
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10.0 Applicable Law. To the extent not preempted by federal law,
this Agreement shall be governed by and construed in accordance with the laws of
the State of New York; and the parties agree to submit to the personal
jurisdiction of the New York courts with respect to any matter or dispute
arising out of this Agreement.
11.0 Captions and Paragraph Headings. Captions and paragraph
headings used in this Agreement are for convenience only and are not to be
construed as part of this Agreement.
12.0 Waiver. Waiver of any provision of this Agreement, in whole or
part, in any one instance shall not constitute a waiver of any other provision
in the same instance; nor any waiver of the same provision in another instance,
but each provision shall continue in full force and effect with respect to any
other then existing or subsequent breach.
13.0 Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed an original, but all of which shall
constitute one and the same instrument.
14.0 Survival of Covenants. The obligations of the parties to each
other set forth in Paragraphs 3.0, 4.0, 5,0, 6.0 and 7.0 shall survive the
payment of the severance benefits to Xx. Xxxxxxxx set forth herein for the
applicable statute of limitations period.
15.0 Tax Matters. The Company has determined that the lump sum
amounts payable to Xx. Xxxxxxxx pursuant to this Agreement are not subject to
the "specified employee" ("rules") as defined under Section 409A of the Internal
Revenue Code and applicable regulations (the "Code"). Consequently, there is no
requirement to delay those payments for six (6) months following Xx. Xxxxxxxx'x
Date of Termination and the
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terms of this Agreement will be administered consistent with the "short term
deferral" exception under the Code.
16.0 Representations. Xx. Xxxxxxxx acknowledges that he has
carefully read this Agreement including the General Release and fully
understands their terms; that he has had ample opportunity to discuss and
consider the terms of this Agreement, including the General Release; that he has
been advised to consult with an attorney; that he understands the final and
binding effect of this Agreement, including the General Release; and that he has
been given a period of at least twenty-one (21) days to consider this Agreement
and General Release. Xx. Xxxxxxxx understands that he has the right to revoke
the General Release within seven (7) days of signing and the General Release
will not become effective or enforceable until the seven (7) day revocation
period has expired.
17.0 Voluntary Assent. Xx. Xxxxxxxx affirms that no other promises
or agreements of any kind have been made to or with him by any person or entity
whatsoever to cause him to sign this Agreement; that he fully understands the
meaning and intent of this Agreement; that Xx. Xxxxxxxx freely and voluntarily
assents to all of the terms and conditions hereof, and that Xx. Xxxxxxxx signs
his name of his own free act with the full intent of releasing the Company and
their Related Persons as set forth herein.
18.0 Entire Agreement. This Agreement, the plans and agreements
referred to in this Agreement, and the General Release constitute the entire
understanding and agreement between the parties hereto respecting the subject
matter hereof and supersede and cancel any previous agreements, commitments
and/or writings in
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connection herewith. Except as set forth in Paragraph 15, no change,
modification or alteration of any of the provisions of this Agreement shall be
binding unless such change, modification or alteration shall have been approved
in writing by an officer of the Company and Xx. Xxxxxxxx.
19.0 Indemnification. The Company shall indemnify, defend and hold
harmless Xx. Xxxxxxxx from any and all liability, claims, rights or causes of
action asserted against him, including costs and expenses (including attorneys'
fees), arising out of his service in good faith as an employee of the Company.
Notwithstanding the foregoing, the Company shall in its sole discretion,
determine on a case by case basis, whether Xx. Xxxxxxxx'x services were rendered
in good faith.
20.0 Release of Claims. To the extent that Xx. Xxxxxxxx'x services
were performed in good faith and in the best interest of the Company, the
Company, to the fullest extent permitted by law, fully and voluntarily forever
releases, waives and discharges Xx. Xxxxxxxx, and his successors, executors, and
personal representatives (hereinafter referred to as "the Releasees") from said
l claims, demands, causes of actions, suits and liabilities, of any kind and
nature, known or unknown, asserted or unasserted, up through the date of the
signing of this Agreement, arising out of Xx. Xxxxxxxx'x employment.
Notwithstanding the foregoing, nothing contained in this Section shall be
considered a release of Xx. Xxxxxxxx from his obligations under this Agreement.
This Section shall not be construed to impair the Company's right to enforce the
terms of this Agreement. However, the Company does covenant and represent that
it will not seek monetary recovery or personal relief from the Releasees arising
out of any of the matters released, waived or discharged under this Section.
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IN WITNESS WHEREOF, each party hereto has caused this Agreement to be
executed by a duly authorized representative in the day and year set forth
below.
Date: 6/21/07 National Grid USA Service Company, Inc.
---------------
By: /S/ Xxxxxxx X. Xxxxxxx
------------------------------------
Title: President of Distribution
---------------------------------
Date: 6/21/07 /S/ Xxxxxxx X. Xxxxxxxx
--------------- ---------------------------------------
Employee Signature
Date: 6/21/07 /S/ Xxxxxx Xxxxxxxxx
--------------- ---------------------------------------
Witness
Exhibit A: General Release
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Exhibit A
General Release
Release of Claims: In consideration of the severance benefits provided to me by
the Company pursuant to the Separation and Release Agreement between me and the
Company, dated May 1, 2007 (the "Agreement"), which I agree that I would not
otherwise be entitled to receive, I, Xxxxxxx X. Xxxxxxxx, to the fullest extent
permitted by law, fully and voluntarily forever release, waive and discharge the
Company, including all past, present and future subsidiaries, parents and
affiliated companies and their successors and assigns, and all past, present and
future fiduciaries, trustees, directors, officers, agents and employees of any
such companies, and their successors and assigns (hereinafter referred to as
"the Company and their Related Persons") from all claims, demands, causes of
actions, suits and liabilities, of any kind and nature, known or unknown,
asserted or unasserted, up through the date of the signing of this General
Release, including but not limited to all such claims arising out of or related
to acceptance of the severance benefits or my employment with or separation from
the Company, including but not limited to any claim for wrongful termination or
discharge, breach of contract or other common law claims and all claims and
damages under the Age Discrimination in Employment Act of 1967, as amended,
including the Older Worker's Benefit Protection Act, Title VII of the Civil
Rights Act of 1964, as amended, the Americans with Disabilities Act of 1990, as
amended, the Family and Medical Leave Act, the Rehabilitation Act, Executive
Order 11246, all claims and damages relating to race, sex, national origin,
disabilities, religion, sexual orientation, age, and all employment
discrimination claims arising under the Massachusetts Civil Rights Act, Mass.
Gen. Laws Ch. 12, sections 11H and 11I, the Massachusetts Fair Employment
Practices Act, and Mass. Gen. Laws Ch. 151B, section 1 et. seq., the
Massachusetts Equal Rights Act, Mass. Gen. Laws Ch. 93, section 102 and Mass.
Gen. Laws Ch. 214, section 1C, the New York Labor Law, the New York Human Rights
Law and similar state statutes, and any claims and damages arising under any
other federal or state statutes not expressly stated above. Notwithstanding the
foregoing, nothing contained in this General Release shall be considered a
release of the Company from its obligations to me under the Agreement or under
any of the plans or agreement pursuant to which, under the Agreement, I remain
entitled to benefits.
Further Covenant: This General Release shall not be construed to impair my right
to enforce the terms of the Agreement; nor shall it be construed to restrict my
right to participate in any manner in an investigation, proceeding or hearing
conducted by the Equal Employment Opportunity Commission or a similar state
agency. However, I do covenant and represent that I will not seek monetary
recovery or personal relief from the Company and their Related Persons arising
out of any of the matters released, waived or discharged under this General
Release. I give this General Release individually and on behalf of any heirs and
assigns and anyone else claiming by or through me.
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Disclosure. I, Xxxxxxx X. Xxxxxxxx specifically acknowledge that I have:
a) read this General Release and fully understand and agree to
its terms;
b) had ample opportunity to discuss and consider the terms of
this General Release;
c) been advised in writing by the Company to consult with an
attorney;
d) been given a period of at least twenty-one (21) days to
consider this General Release;
e) voluntarily chosen to sign this General Release; and
f) have not relied on any statements, explanations or promises
made by the Company and their Related Persons that are
inconsistent with the terms of this General Release.
Right of Revocation: I, Xxxxxxx X. Xxxxxxxx understand that I have the right to
revoke this General Release, in writing, by delivering the revocation to the
Company, within seven (7) days of execution of this General Release. I
understand that revoking this General Release will not effect my Date of
Termination. I further understand that by revoking this General Release, I will
no longer be eligible for the severance benefits set forth in Sections 2.2
through 2.5 of the Agreement. Rather, I will only be entitled to the severance
payment set forth in Section 2.6 of the Agreement.
Applicable State Law: To the extent not preempted by federal law, this General
Release shall be governed by, and construed in accordance with, the laws of the
State of New York; and I agree to submit to the personal jurisdiction of New
York's courts in respect to any matter or dispute arising out of this General
Release.
Severability: I agree that in the event any portion of this General Release is
deemed invalid, against public policy, void or otherwise unenforceable by either
an administrative agency or court of law, the remaining portions shall remain
enforceable at the option of the Company.
Entire Agreement; Modifications: This General Release supersedes any prior
written or oral understanding between me and the Company. Except as provided
above, this General Release shall not be altered or amended except in a writing
signed by both me and the Company.
Date:
---------------------------- -----------------------------
Employee's Signature
Date:
---------------------------- -----------------------------
Witnessed by Notary Public
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