Exhibit 10(O)
AMENDED AND RESTATED AGREEMENT
THIS AMENDED AND RESTATED AGREEMENT is dated and entered into
effective as of the 20th day of August, 1998 by and between E'Town
Corporation, a New Jersey corporation (together with its affiliated
companies, the "Company"), and XXXXXXXXXXXXX, residing at XXXXXXXXXXXXX (the
"Executive").
W I T N E S S E T H:
WHEREAS, subsequent to the execution and delivery of the original
of this Agreement, dated and entered into effective as of the 20th day of
August, 1998, the parties hereto have agreed to make several clarifications
to the terms and conditions of this Agreement, as are reflected herein, and
to restate this Agreement in its entirety; and
WHEREAS, should the Company receive a proposal from or engage in
discussions with a third person concerning a possible business combination
with the Company or the acquisition of a substantial portion of voting
securities of the Company, the Board of Directors of the Company (the
"Board") has deemed it imperative that it and the Company be able to rely on
the Executive to continue to serve in the Executive's position and that the
Board and the Company be able to rely upon the Executive's advice as being in
the best interests of the Company and its shareholders without concern that
the Executive might be distracted by the personal uncertainties and risks
that such a proposal or discussions might otherwise create; and
WHEREAS, the Company desires to reward the Executive for the
Executive's valuable, dedicated service to the Company should the Executive's
service be terminated under circumstances hereinafter described; and
WHEREAS, the Board therefore considers it in the best interests of
the Company and its shareholders for the Company to enter into this Agreement
with the Executive; and
WHEREAS, the Board has approved the execution and delivery of this
Agreement by the Company by resolution duly adopted by the Board at a meeting
of the Board held on August 20, 1998;
NOW, THEREFORE, to assure the Company of the Executive's continued
dedication and the availability of the Executive's advice and counsel in the
event of any such proposal, to induce the Executive to remain in the employ
of the Company and to reward the Executive for the Executive's valuable,
dedicated service to the Company should the Executive's service be terminated
under circumstances hereinafter described, and for other good and valuable
consideration, the receipt and adequacy whereof each party acknowledges, the
Company and the Executive agree as follows:
1. OPERATION, EFFECTIVE DATE, AND TERM OF AGREEMENT.
(a) This Agreement shall commence on the date hereof and continue
in effect through December 31, 1999; provided, however, that commencing on
January 1, 2000 and each succeeding January 1 thereafter, the term of this
Agreement shall be extended automatically for one additional year unless not
later than September 30 of the preceding year the Company shall have given
notice to the Executive that it does not wish to extend this Agreement.
(b) This Agreement is effective and binding on both parties hereto
as of the date hereof. Notwithstanding its present effectiveness, the
provisions of paragraphs 3 and 4 of this Agreement shall become operative
only when, as and if there has been a "Change in Control of the Company" (as
hereinafter defined). For purposes of this Agreement, a "Change in Control
of the Company" shall be deemed to have occurred if
(X) any "person" (as such term is used in Sections 13(d) and
14(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act")), other than a trustee or other fiduciary holding
securities under an employee benefit plan of the Company or a
person engaging in a transaction of the type described in clause
(Z) below of this paragraph 1(b) but which does not constitute a
change in control under such clause (Z), hereafter becomes the
"beneficial owner" (as defined in Rule 13d-3 under the Exchange
Act), directly or indirectly, of securities of the Company
representing more than 50% of the combined voting power of the
Company's then outstanding securities; or
(Y) during any period of twenty-four (24) consecutive months
during the term of this Agreement, individuals who at the beginning
of such period constitute the Board, and any new director (other
than a director designated by a person who has entered into an
agreement with the Company to effect a transaction described in
clauses (X) or (Z) of this paragraph 1(b)) whose election by the
Board, or nomination for election by the Company's shareholders,
was approved by a vote of at least two-thirds (2/3) of the
directors then still in office who either were directors at the
beginning of the period or whose election or nomination for
election was previously so approved, cease for any reason to
constitute a majority thereof; or
(Z) the shareholders of the Company approve or, if no
shareholder approval is required or obtained, the Company
completes, a merger, consolidation or similar transaction of the
Company with or into any other corporation, or a binding share
exchange involving the Company's securities, other than any such
transaction which would result in the voting securities of the
Company outstanding immediately prior thereto continuing to
represent (either by remaining outstanding or by being converted
into voting securities of the surviving entity) at least 50% of the
combined voting power of the voting securities of the Company or
such surviving entity outstanding immediately after such
transaction, or the shareholders of the Company approve a plan of
complete liquidation of the Company or an agreement for the sale or
disposition by the Company of all or substantially all the
Company's assets.
2. EMPLOYMENT OF EXECUTIVE.
Nothing herein shall affect any right which the Executive or the
Company may otherwise have to terminate the Executive's employment by the
Company at any time in any lawful manner, subject always to the Company's
providing to the Executive the payments and benefits specified in paragraphs
3 and 4 of this Agreement to the extent hereinbelow provided.
In the event that any person commences a tender or exchange offer,
circulates a proxy statement to the Company's shareholders or takes other
steps designed to effect a Change in Control of the Company as defined in
paragraph 1 of this Agreement, the Executive agrees that the Executive will
not voluntarily leave the employ of the Company and will continue to perform
the Executive's regular duties and to render the services provided by the
Executive to the Company until such person has abandoned or terminated his
efforts to effect a Change in Control of the Company or until a Change in
Control of the Company has occurred. Should the Executive voluntarily
terminate the Executive's employment before any such effort to effect a
Change in Control of the Company has commenced, or after any such effort has
been abandoned or terminated without effecting a Change in Control of the
Company and no such effort is then in process, this Agreement shall
automatically terminate and be of no further force or effect.
3. TERMINATION FOLLOWING CHANGE IN CONTROL.
(a) If any of the events described in paragraph 1 hereof
constituting a Change in Control of the Company shall have occurred, the
Executive shall be entitled to the payments and benefits provided in
paragraph 4 hereof upon the subsequent termination of the Executive's
employment within the applicable period set forth in paragraph 4 hereof
following such Change in Control of the Company unless such termination is
(i) due to the Executive's death; or (ii) by the Company by reason of the
Executive's Disability (as hereinafter defined) or for Cause (as hereinafter
defined); or (iii) by the Executive other than for Good Reason (as
hereinafter defined).
(b) If, following a Change in Control of the Company, the
Executive's employment is terminated by reason of the Executive's death or
Disability, the Executive shall be entitled to death or long-term disability
benefits, as the case may be, from the Company no less favorable than the
maximum benefits to which the Executive would have been entitled had the
death or termination for Disability occurred at any time during the six month
period prior to the Change in Control of the Company. If prior to any such
termination for Disability, the Executive fails to perform the Executive's
duties as a result of incapacity due to physical or mental illness, the
Executive shall continue to receive the Executive's Salary (as hereinafter
defined), less any benefits as may be available to the Executive under the
Company's disability plans until the Executive's employment is terminated for
Disability.
(c) If the Executive's employment shall be terminated by the
Company for Cause or by the Executive other than for Good Reason, the Company
shall pay to the Executive the Executive's full Salary through the Date of
Termination (as hereinafter defined) at the rate in effect at the time Notice
of Termination is given, and the Company shall have no further obligations to
the Executive under this Agreement.
(d) For purposes of this Agreement:
(i) "Disability" shall mean the Executive's incapacity due to
physical or mental illness such that the Executive shall
have become qualified to receive benefits under the
Company's long-term disability plans or any equivalent
coverage required to be provided to the Executive
pursuant to any other plan or agreement, whichever is
applicable.
(ii) "Cause" shall mean:
(A) the conviction of the Executive for a felony, or the
willful commission by the Executive of a criminal or
other act that in the judgment of the Board causes
or will probably cause substantial economic damage
to the Company or substantial injury to the business
reputation of the Company;
(B) the commission by the Executive of an act of fraud
in the performance of such Executive's duties on
behalf of the Company that causes or will probably
cause economic damage to the Company; or
(C) the continuing willful failure of the Executive to
perform the Executive's duties, as such duties were
performed by the Executive prior to the day of the
Change in Control of the Company (other than any
such failure resulting from the Executive's
incapacity due to physical or mental illness) after
written notice thereof (specifying the particulars
thereof in reasonable detail) and a reasonable
opportunity to be heard and cure such failure are
given to the Executive by the Compensation Committee
of the Board.
For purposes of this subparagraph (d)(ii), no act, or failure to
act, on the Executive's part shall be considered "willful" unless done, or
omitted to be done, by the Executive not in good faith and without reasonable
belief that the Executive's action or omission was in the best interests of
the Company.
(iii)"Good Reason" shall mean:
(A) The assignment by the Company to the Executive of
duties without the Executive's express written
consent, which (i) are materially different or
require travel significantly more time consuming or
extensive than the Executive's duties or business
travel obligations immediately prior to the Change
in Control of the Company, or (ii) result in either
a significant reduction in the Executive's authority
and responsibility as a senior corporate executive
of the Company when compared to the highest level of
authority and responsibility assigned to the
Executive at any time during the six (6) month
period prior to the Change in Control of the
Company, or (iii) the removal of the Executive from,
or any failure to reappoint or reelect the Executive
to, the highest title held since the date six (6)
months before the Change in Control of the Company,
except in connection with a termination of the
Executive's employment by the Company for Cause, or
by reason of the Executive's death or Disability;
(B) A reduction by the Company of the Executive's
Salary, or the failure to grant increases in the
Executive's Salary on a basis at least substantially
comparable to those granted generally to other
executives of the Company of comparable title,
salary and performance ratings, made in good faith;
(C) The relocation of the Company's principal executive
offices to a location outside the State of New
Jersey, or a requirement by the Company that the
Executive relocate (except for required travel on
the Company's business to an extent substantially
consistent with the Executive's business travel
obligations immediately prior to the Change in
Control) (i) to a location which is outside a radius
of one hundred (100) miles from the Executive's
place of employment with the Company immediately
prior to the Change in Control, or (ii) to a
location outside the State of New Jersey; or, in the
event the Executive expressly consents in writing to
any such relocation of the Executive outside such
one hundred mile radius or the State of New Jersey,
the failure by the Company to pay (or reimburse the
Executive for) all reasonable moving expenses
incurred by the Executive relating to a change of
principal residence in connection with such
relocation and to indemnify the Executive against
any loss realized in the sale of the Executive's
principal residence in connection with any such
change of residence, all to the effect that the
Executive shall incur no loss upon such sale on an
after tax basis;
(D) The failure by the Company to continue to provide
the Executive with substantially the same welfare
benefits (which for purposes of this Agreement shall
mean benefits under all welfare plans as that term
is defined in Section 3(1) of the Employee
Retirement Income Security Act of 1974, as amended),
and perquisites, including participation on a
comparable basis in the Company's stock option plan,
incentive bonus plan and any other plan in which
executives of the Company of comparable title and
salary or subject to similar performance criteria
participate and as were provided to the Executive
immediately prior to such Change in Control of the
Company, or with a new package of welfare benefits
and perquisites that is substantially comparable in
all material respects to the welfare benefits and
perquisites as were provided to the Executive
immediately prior to such Change in Control; or
(E) The failure of the Company to obtain the express
written assumption of and agreement to perform this
Agreement by any successor as contemplated in
paragraph 5(c) hereof.
(iv) "Dispute" shall mean (i) in the case of termination of
employment of the Executive with the Company by the
Company for Disability or Cause, that the Executive
challenges the existence of Disability or Cause and (ii)
in the case of the Executive's termination of employment
with the Company by the Executive for Good Reason, that
the Company challenges the existence of Good Reason.
(v) "Salary" shall mean the Executive's then current annual
rate of salary plus any of the following amounts which
are not included in the Executive's annual salary as
reported on the Executive's United States Internal
Revenue Service Form W-2 ("Form W-2"): (i) any restricted
stock of the Company awarded to the Executive, or which
the Executive is entitled to receive under any plan,
arrangement or contract of the Company or pursuant to any
resolution of the Board, in lieu of base compensation,
(ii) any 401(K) compensation, and (iii) any compensation
deferred in accordance with Section 125 of the United
States Internal Revenue Code of 1986, as amended and the
regulations thereunder (the "Code").
(vi) "Incentive Compensation" in any year shall mean the
amount accrued, if any, under any plan or arrangement of
the Company in which executives of the Company of
comparable title and salary or being subject to
comparable performance criteria participate, or any under
contract between the Company and the Executive, in each
case which provides for any cash bonus, restricted stock,
stock option, stock award or similar incentive
compensation in addition to base salary and which is not
reported on Form W-2.
(e) Any purported termination of the Executive's employment by the
Company by reason of the Executive's Disability or for Cause, or by the
Executive for Good Reason shall be communicated by written Notice of
Termination (as hereinafter defined) to the other party hereto. For purposes
of this Agreement, a "Notice of Termination" shall mean a notice given by the
Executive or the Company, as the case may be, which shall indicate the
specific basis for termination and shall set forth in reasonable detail the
facts and circumstances claimed to provide a basis for determination of any
payments due under this Agreement. The Executive shall not be entitled to
give a Notice of Termination that the Executive is terminating the
Executive's employment with the Company for Good Reason more than six (6)
months following the occurrence of the event alleged to constitute Good
Reason. The Executive's actual employment by the Company shall cease on the
Date of Termination, even though such Date of Termination for all other
purposes of this Agreement may be extended in the manner contemplated in the
second sentence of paragraph 3(f) below.
(f) For purposes of this Agreement, the "Date of Termination"
shall mean (i) the date specified in the Notice of Termination, which shall
be not more than ninety (90) days after such Notice of Termination is given,
as such date may be modified pursuant to the next sentence, or (ii) in the
event that no Notice of Termination is given, on the date that the
Executive's employment with the Company actually terminated. If within thirty
(30) days after any Notice of Termination is given, the party who receives
such Notice of Termination notifies the other party that a Dispute exists,
the Date of Termination shall be the date on which the Dispute is finally
determined, either by mutual written agreement of the parties or by a final
judgment, order or decree of a court of competent jurisdiction (the time for
appeal therefrom having expired and no appeal having been perfected);
provided, that the Date of Termination shall be extended by a notice of
Dispute only if such notice is given in good faith and the party giving such
notice pursues the resolution of such Dispute with reasonable diligence and
provided further that, pending the resolution of any such Dispute, the
Company shall continue to pay the Executive the same Salary and Incentive
Compensation, and provide the Executive with the same or substantially
comparable welfare benefits and perquisites that the Executive was paid and
provided immediately prior to the Change in Control of the Company. Should a
Dispute ultimately be determined in favor of the Company, then all sums paid
by the Company to the Executive from the Date of Termination specified in the
Notice of Termination until final resolution of the Dispute pursuant to this
paragraph 3(f) shall be repaid promptly by the Executive to the Company, with
interest at the average prime rate generally prevailing from time to time
among major New York City banks and all options, rights and stock awards
granted to the Executive during such period shall be canceled or returned to
the Company. The Executive shall not be obligated to pay to the Company the
cost of providing the Executive with welfare benefits and perquisites for
such period unless the final judgment, order or decree of a court or other
body resolving the Dispute determines that the Executive acted in bad faith
in giving a notice of Dispute. Should a Dispute ultimately be determined in
favor of the Executive, then the Executive shall be entitled to retain all
sums paid to the Executive under this paragraph 3(f) pending resolution of
the Dispute and shall be entitled to receive, in addition, the payments and
other benefits provided for in paragraph 4 hereof to the extent not
previously paid hereunder. In addition, should a Dispute, or any other
challenge, claim, action, proceeding or dispute brought by the Executive
against the Company with respect to this Agreement, ultimately be determined
in favor of the Executive, then the Company shall reimburse the Executive for
all costs and expenses (including, without limitation, reasonable attorneys'
fees) incurred by the Executive in connection therewith.
4. PAYMENTS UPON TERMINATION.
If within three (3) years after a Change in Control of the Company,
the Company shall terminate the Executive's employment other than by reason
of the Executive's death, Disability or for Cause, or if the Executive shall
terminate the Executive's employment for Good Reason, then
(a) the Company will continue to pay to the Executive, for a
period of eighteen (18) months following the Date of Termination, as
compensation for services rendered by the Executive on or before the
Executive's Date of Termination, the Executive's Salary and Incentive
Compensation (subject to any applicable payroll taxes or other taxes required
to be withheld computed at the rate for supplemental payments) at the highest
rate in effect during the twenty-four (24) month period ending on the date on
which a Change in Control of the Company occurred; and
(b) for a period of eighteen (18) months following the Date of
Termination, the Company shall provide, at the Company's expense, the
Executive and the Executive's spouse and children with full benefits under
any employee benefit plan or arrangement in which the Executive participated
immediately prior to the date of a Change in Control, including, without
limitation, any hospital, medical and dental insurance with substantially the
same coverage and benefits as were provided to the Executive immediately
prior to the date on which a Change in Control of the Company occurred; and
(c) the Company will pay on the Date of Termination of the
Executive as compensation for services rendered on or before the Executive's
Date of Termination, in addition to the amounts set forth in paragraph 4(a)
above, a sum equal to the greater of (i) all Incentive Compensation and other
incentive awards due to the Executive immediately prior to the date on which
a Change in Control of the Company occurred which are not yet paid and (ii)
all Incentive Compensation and other incentive awards due to the Executive
immediately prior to the Date of Termination which are not yet paid; and
(d) for a period of eighteen (18) months following the Date of
Termination, the Company shall provide to the Executive, at the Company's
expense, the automobile (or a comparable automobile) or automobile allowance,
as the case may be, provided by the Company to the Executive immediately
prior to the date on which a Change in Control of the Company occurred and
the Company shall reimburse the Executive any and all expenses incurred by
the Executive in connection with the use of such automobile during such
eighteen month period to the extent that the Company reimburses generally
other executives of comparable title and salary or subject to comparable
performance criteria; and
(e) subject to the limitations set forth herein, any restricted
stock of the Company in the Executive's account as an officer of the Company
and any stock options granted to the Executive on or prior to the Date of
Termination which are not vested in the Executive as of the Date of
Termination shall become immediately vested, and all such restrictions
thereon (including, but not limited to, any restrictions on the
transferability of such stock), and any restrictions on any other restricted
stock or stock options awarded to the Executive through any plan, arrangement
or contract of the Company on or before the Date of Termination, shall be
null and void and of no further force and effect and the Company agrees to
accelerate and make immediately exercisable in full all unmatured
installments of all outstanding stock options to acquire stock of the Company
which the Executive holds as of the Date of Termination; provided, however,
that notwithstanding anything to the contrary contained in this Agreement,
the Board hereby reserves the right and authority to amend, modify and
eliminate the provisions of this Section 4(e), from time to time on or after
the date of this Agreement, in whole or in part, including, without
limitation, the right to modify, amend or eliminate the acceleration of
vesting or exercisability of stock options and the lapsing of any
restrictions thereon, in its sole discretion without the approval or consent
of the Executive or any other person or entity, for the purposes of obtaining
accounting treatment which is favorable or beneficial for, or in the interest
of, the Company in connection with any business combination involving the
Company or acquisition of any substantial portion of voting securities of the
Company and, in the event that the Board determines, in its sole discretion,
to so modify, amend or eliminate the provisions of this Section 4(e), the
Executive hereby agrees that the Executive shall not, and hereby waives any
right to, dispute, challenge or bring any claim, action or proceeding against
the Company with respect to any action taken by or on behalf of the Company
to so modify, amend or eliminate the provisions of this Section 4(e) and any
such modification, amendment, or elimination of the provisions of this
Section 4(e) shall not affect the validity or enforceability of any other
provisions of this Agreement, which such other provisions shall remain in
full force and effect in accordance with the terms thereof; and
(f) the Executive's retirement benefits in effect immediately
prior to the date on which a Change in Control of the Company occurred under
the Company's Supplemental Executive Retirement Plan, or any successor plan
in effect on the date on which a Change in Control of the Company occurred
(the "SERP"), shall become fully vested and nonforfeitable on the Date of
Termination and (i) if the Executive has not attained the age of 65 as of the
Date of Termination, the Executive shall be deemed to have attained the age
of 65 as of the Date of Termination for purposes of the normal retirement
provisions of the SERP, and (ii) the Executive shall be deemed to have
accumulated ten (10) years of continuous service on the Date of Termination
for purposes of the benefit accrual provisions of the SERP, in addition to
the number of years of service already accumulated by the Executive as of the
Date of Termination. In satisfaction of the Company's obligations under this
paragraph 4(f), the Company shall purchase an annuity or similar instrument
owned by the Executive and payable to the Executive (or the Executive's
beneficiaries, as the case may be) which provides for payment of the SERP
retirement benefits consistent with the payment provisions of the SERP. Such
annuity or other instrument shall be purchased and delivered to the Executive
by the Company within thirty (30) days after the Date of Termination; and
(g) in event that any payment or benefit received or to be
received by the Executive in connection with a Change in Control of the
Company or the termination of the Executive's employment, whether pursuant to
the terms of this Agreement or any other plan, arrangement or agreement with
the Company (collectively, with the payments and benefits hereunder, "Total
Payments") would not be deductible as employee compensation, in whole or in
part, by the Company as the result of Section 280G of the Code, the Company
shall pay to the Executive either of the following amounts as directed by the
Executive by written notice to the Company (i) an amount equal to the
payments and benefits due under this Agreement reduced until no portion of
the Total Payments is not deductible, as the result of Section 280G of the
Code, by reducing to the extent necessary the payments and benefits due under
paragraph 3(a) hereof (the "Reduced Amount"); provided, however, that the
Executive shall elect which payment and/or benefits shall be reduced and the
amount of such reduction so long as, after such reduction, the aggregate
present value of the Total Payments equals the Reduced Amount, or (ii) the
payments and benefits due under this Agreement in accordance with the terms
and conditions of this Agreement; it being the understanding and agreement of
each of the Company and the Executive that, if the Executive makes the
election under clause (ii) of this paragraph 4(g), the Executive shall be
responsible to pay the amount of any federal, state and local income taxes
and any excise tax imposed by Section 4999 of the Code on such payments and
benefits due under paragraph 3(a) of this Agreement (the "Excise Tax"), that
the Company shall have no obligation to pay to the Executive any additional
payment for such Excise Tax, if any, and that the Executive shall have no
liability or responsibility to reimburse the Company for any losses incurred
by the Company as a result of the Company's inability to deduct such payment,
in whole or in part, as the result of Section 280G of the Code. For purposes
of this limitation (A) no portion of the Total Payments, the receipt or
enjoyment of which the Executive shall have effectively waived in writing
prior to the date of payment, shall be taken into account, (B) no portion of
the Total Payments shall be taken into account which, in the opinion of tax
counsel selected by the Executive and acceptable to the Company's independent
auditors, is not likely to constitute a "parachute payment" within the
meaning of Section 280G(b)(2) of the Code, and (C) the value of any non-cash
benefit or any deferred payment or benefit included in the Total Payments
shall be determined by the Company's independent auditors in accordance with
the principles of Sections 280G(d)(3) and (4) of the Code. The Company and
the Executive each shall reasonably cooperate with the other in connection
with any administrative or judicial proceedings concerning the existence or
amount of liability for any Excise Tax with respect to the payments and
benefits due under this Agreement. As promptly as practicable following such
determination and the elections hereunder, the Company shall pay or
distribute to or for the benefit of the Executive such payments and benefits
as are then due to the Executive under this Agreement and shall promptly pay
or distribute to or for the benefit of the Executive in the future such
payments and benefits as become due to the Executive under this Agreement.
In the event that an underpayment of payments and benefits due to the
Executive under this Agreement occurs as a result of a miscalculation of the
Total Payments as a "parachute payment" within the meaning of Section 280G of
the Code, such underpayment shall be paid promptly by the Company to or for
the benefit of the Executive, together with interest at the applicable
federal rate provided for in Section 7872(f)(2)(A) of the Code. The Company
shall pay or distribute to or for the benefit of the Executive such payments
and benefits as are then due to the Executive under this Agreement even if
the Company is unable to deduct any portion of such payment and benefits as
the result of Section 280G of the Code.
5. GENERAL.
(a) The Executive shall retain in confidence any proprietary or
other confidential information known to the Executive concerning the Company
and its business so long as such information is not publicly disclosed and
disclosure is not required by an order of any governmental body or court.
Notwithstanding anything to the contrary contained herein, this paragraph
5(a) shall survive any expiration or termination of this Agreement for any
reason whatsoever.
(b) Subject to paragraph 5(f) below, the Company's obligation to
pay the compensation and provide the benefits to the Executive and to make
the arrangements provided herein shall be absolute and unconditional and
shall not be affected by any circumstance, including, without limitation, any
setoff, counterclaim, recoupment, defense or other right which the Company
may have against the Executive or anyone else. All amounts payable by the
Company hereunder shall be paid without notice or demand. Except as
expressly provided herein, the Company waives all rights which it may now
have or may hereafter have conferred upon it, by statute or otherwise, to
terminate, cancel or rescind this Agreement in whole or in part. Except as
provided in paragraph 5(f) herein, each and every payment made hereunder by
the Company shall be final and the Company will not seek to recover for any
reason all or any part of such payment from the Executive or any person
entitled thereto.
(c) The Company will require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company, by written
agreement in form and substance satisfactory to the Executive, to expressly
assume and agree to perform this Agreement in the same manner and to the same
extent that the Company would be required to perform it if no such succession
had taken place.
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 executes and delivers the agreement provided for in this
paragraph 5 or which otherwise becomes bound by all the terms and provisions
of this Agreement by operation of law.
(d) This Agreement shall inure to the benefit of, and be
enforceable by, the Executive's personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees and legatees. If
the Executive should die while any amounts would still be payable to the
Executive hereunder if the Executive had continued to live, all such amounts,
unless otherwise provided herein, shall be paid in accordance with the terms
of this Agreement to the Executive's devisee, legatee or other designee or,
if there be no such designee, to the Executive's estate. The obligations of
the Executive hereunder shall not be assignable by the Executive.
(e) Nothing in this Agreement shall be deemed to entitle the
Executive to continued employment with the Company and the rights of the
Company to terminate the employment of the Executive shall continue as fully
as though this Agreement were not in effect.
(f) The Executive shall be required to mitigate the amount of any
payment or other benefit provided for in this Agreement by seeking other
employment of similar responsibility, salary and benefits and, upon any such
employment of the Executive, the payments and other benefits provided for in
this Agreement then or thereafter due to the Executive (other than any
payments and benefits provided for in Section 4(f) above) shall be reduced or
modified, as applicable, to the extent the Executive receives a similar
payment or benefit of equal or greater value in connection with any such
other employment.
6. NOTICE.
For the purposes of this Agreement, notices and all other
communications provided for in the Agreement shall be in writing and shall be
deemed to have been duly given when delivered or mailed by United States
registered mail, return receipt requested, postage prepaid, addressed as
follows:
If to the Executive:
XXXXXXXXXXXX
If to the Company:
E'Town Corporation
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or to such other address as either party may have furnished to the other in
writing in accordance herewith, except that notices of change of address
shall be effective only upon receipt.
7. MISCELLANEOUS.
Except as expressly set forth in this Agreement to the contrary, no
provisions of this Agreement may be modified, waived or discharged unless
such waiver, modification or discharge is agreed to in writing, signed by the
Executive and such officer as may be specifically designated by the Board.
No waiver by either party hereto at any time of any breach by the other party
hereto of, or compliance with, any condition or provision of this Agreement
to be performed by such other party shall be deemed a waiver of similar or
dissimilar provisions or conditions at the same or at any prior or subsequent
time. No assurances or representations, oral or otherwise, express or
implied, with respect to the subject matter hereof have been made by either
party which are not set forth expressly in this Agreement. However, this
Agreement is in addition to, and not in lieu of, any other plan providing for
payments to or benefits for the Executive or any agreement now existing, or
which hereafter may be entered into, between the Company and the Executive.
The validity, interpretation, construction and performance of this Agreement
shall be governed by the laws of the State of New Jersey.
8. VALIDITY.
The invalidity or unenforceability of any 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.
Any provision in this Agreement which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective only to the
extent of such prohibition or unenforceability without invalidating or
affecting the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
9. AMENDMENT TO SERP.
By execution and delivery of this Agreement, the Executive hereby
acknowledges that, on or before the date of this Agreement, the Executive has
received and has had an opportunity to read, and that the Executive
understands, the Amendment to the SERP (the "Amendment") and that the
amendments, modifications and supplements in and to the SERP set forth in the
Amendment are in the best interests of the Executive and are necessary and
appropriate to conform the terms and conditions of the SERP to the terms and
conditions of this Agreement and the Executive hereby agrees to the
amendments, modifications and supplements in and to the provisions of the
SERP in accordance with the terms and conditions set forth in the Amendment to
be effective as of the date of this Agreement and that a copy of the
Amendment shall be attached as an exhibit to and incorporated by reference
into the SERP as of the date of this Agreement.
10. VARIANCE AMONG AGREEMENTS.
The Executive understands that the Company may enter into
agreements with other executives of the Company similar to this Agreement
that may contain terms different from those contained in this Agreement.
Despite any such different terms in such other agreements,
the Executive understands and agrees that this Agreement alone sets forth the
Executive's rights with respect to the subject matter of this Agreement, and
that the Executive is not a third party beneficiary of any such other
agreements.
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date set forth above.
E'TOWN CORPORATION
By:
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Name:
Title:
EXECUTIVE
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XXXXXXXXXXXX
Address: XXXXXXXXXXXXX
Recipients of the above contract:
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