November 20, 1998
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Management Continuity Agreement
Dear ▇▇. ▇▇▇▇▇▇▇▇:
The Board of Directors (the "Board") of EnergyNorth, Inc.
(the "Company") recognizes that, as is the case with many
publicly held corporations, there always exists the
possibility of a change of control of the Company. This
possibility and the uncertainty it creates may result in the
loss or distraction of members of management of the Company
and its subsidiaries to the detriment of the Company and its
shareholders.
The Board considers the establishment, maintenance, and
continuity of a sound and vital management to be essential to
protecting and enhancing the best interests of the Company and
its shareholders. The Board also believes that when a change
of control is perceived as imminent, or is occurring, the
Board should be able to receive and rely on disinterested
advice from management regarding the best interests of the
Company and its shareholders without concern that members of
management might be distracted or concerned by the personal
uncertainties and risks created by the perception of an
imminent or occurring change of control.
Accordingly, the Board has determined that appropriate
steps should be taken to assure the Company of the continued
employment and attention and dedication to duty of certain
members of management of the Company and to ensure the
availability of their disinterested advice, notwithstanding
the possibility, threat or occurrence of a change of control.
Therefore, in order to fulfill the above purposes, the
Board has designated you as eligible for severance benefits as
set forth below.
1. Offer. In order to induce you to remain in the employ of
the Company and to provide continued services to the Company
now and in the event that a change of control is imminent or
occurring, this letter agreement (the "Agreement") sets forth
severance benefits which the Company offers to pay to you in
the event of a termination of your employment (as described in
Section 5 below, excluding a termination for Cause,
disability, death or retirement) subsequent to a Change of
Control of the Company (as defined in Section 4 below).
2. Operation. This Agreement shall be effective immediately
upon its execution but, anything in this Agreement to the
contrary notwithstanding, neither this Agreement nor any of
its provisions shall be operative unless and until there has
been a Change of Control
while you are still an employee of
the Company, nor shall this Agreement govern or affect your
employment relationship with the Company except as explicitly
set forth herein. Upon a Change of Control, if you are still
employed by the Company, this Agreement and all of its
provisions shall become operative immediately. If your
employment relationship with the Company is terminated before
a Change of Control, you shall have no rights or obligations
under this Agreement.
3. Term.
Term of Agreement. The term of this Agreement shall
commence immediately upon the date hereof and continue for a
period of at least sixty full calendar months thereafter.
One-Year Evergreen Provision. This Agreement shall be
reviewed annually by the Board at its meeting held for the
review of compensation and in all events prior to December 1
of each year. At such yearly review, the Board shall consider
whether or not to extend the term of this Agreement for an
additional year. Unless the Board affirmatively votes not to
extend this Agreement, the term of this Agreement shall be
extended for a period of one year from the previous
termination date. In the event the Board votes not to extend
this Agreement, the termination date of this Agreement shall
be the later of sixty months from the effective date of this
Agreement or sixty months from December 1st of the year in
which this Agreement was last extended.
4. Change in Control: For the purpose of this Agreement, a
"Change of Control" shall mean:
(1) The acquisition by any individual, entity or
group [within the meaning of Section 13(d)(3) or 14(d)(2)
of the Securities Exchange Act of 1934, as amended (the
"Exchange Act")] (a "Person") of beneficial ownership
(within the meaning of Rule 13d-3 promulgated under the
Exchange Act) of 20% or more of either (i) the then
outstanding shares of common stock of the Company (the
"Outstanding Company Common Stock") or (ii) the combined
voting power of the then outstanding voting securities of
the Company entitled to vote generally in the election of
directors (the "Outstanding Company Voting Securities");
provided, however, that the following acquisitions shall
not constitute a Change of Control: (i) any acquisition
directly from the Company (excluding an acquisition by
virtue of the exercise of a conversion privilege), (ii)
any acquisition by the Company, (iii) any acquisition by
any employee benefit plan (or related trust) sponsored or
maintained by the Company or any corporation controlled
by the Company or (iv) any acquisition by any corporation
pursuant to a reorganization, merger or consolidation,
if, following such reorganization, merger or
consolidation, the conditions described in clauses (i),
(ii) and (iii) of Subparagraph (3) of this Subsection (b)
are satisfied; or
(2) Individuals who, as of the date hereof,
constitute the Board (the "Incumbent Board") cease for
any reason to constitute at least a majority of the
Board; provided, however, that any individual becoming a
director subsequent to the date hereof whose election, or
nomination for election by the Company's shareholders,
was approved by a vote of at least a majority of the
directors then comprising the Incumbent Board shall be
considered as though such individual were a member of the
Incumbent Board, but excluding, for this purpose, any
such individual whose initial assumption of office occurs
as a result of either an actual or threatened election
contest (as such terms are used in Rule 14a-11 of
Regulation 14A promulgated under the Exchange Act) or
other actual or threatened solicitation of proxies or
consents by or on behalf of a Person other than the
Board; or
(3) Approval by the shareholders of the Company of
a reorganization, merger or consolidation, in each case,
unless, following such reorganization, merger or
consolidation,(i) more than 60% of, respectively, the
then outstanding shares of common stock of the
corporation resulting from such reorganization, merger or
consolidation and the combined voting power of the then
outstanding voting securities of such corporation
entitled to vote generally in the election of directors
is then beneficially owned, directly or indirectly, by
all or substantially all of the individuals and entities
who were the beneficial owners, respectively, of the
Outstanding Company Common Stock and Outstanding Company
Voting Securities immediately prior to such
reorganization, merger or consolidation in substantially
the same proportions as their ownership, immediately
prior to such reorganization, merger or consolidation, of
the Outstanding Company Common Stock and Outstanding
Company Voting Securities, as the case may be, (ii) no
Person (excluding the Company, any employee benefit plan
(or related trust) of the Company or such corporation
resulting from such reorganization, merger or
consolidation and any Person beneficially owning,
immediately prior to such reorganization, merger or
consolidation, directly or indirectly, 20% or more of the
Outstanding Company Common Stock or Outstanding Company
Voting Securities, as the case may be) beneficially owns,
directly or indirectly, 20% or more of, respectively, the
then outstanding shares of common stock of the
corporation resulting from such reorganization, merger or
consolidation or the combined voting power of the then
outstanding voting securities of such corporation
entitled to vote generally in the election of directors
and (iii) at least a majority of the members of the board
of directors of the corporation resulting from such
reorganization, merger or consolidation were members of
the Incumbent Board at the time of the execution of the
initial agreement providing for such reorganization,
merger or consolidation; or
(4) Approval by the shareholders of the Company of
(i) a complete liquidation or dissolution of the Company
or (ii) the sale or other disposition of all or
substantially all of the assets of the Company, other
than to a corporation, with respect to which following
such sale or other disposition, (A) more than 60% of,
respectively, the then outstanding shares of common stock
of such corporation and the combined voting power of the
then outstanding voting securities of such corporation
entitled to vote generally in the election of directors
is then beneficially owned, directly or
indirectly by all or substantially all of the individuals
and entities who were the beneficial owners, respectively, of
the Outstanding Company Common Stock and Outstanding Company
Voting Securities immediately prior to such sale or other
disposition in substantially the same proportion as their
ownership, immediately prior to such sale or other
disposition, of the Outstanding Company Common Stock and
Outstanding Company Voting Securities, as the case may
be, (B) no Person (excluding the Company and any employee
benefit plan (or related trust) of the Company or such
corporation and any Person beneficially owning,
immediately prior to such sale or other disposition,
directly or indirectly, 20% or more of the Outstanding
Company Common Stock or Outstanding Company Voting
Securities, as the case may be) beneficially owns,
directly or indirectly, 20% or more of, respectively, the
then outstanding shares of common stock of such
corporation and the combined voting power of the then
outstanding voting securities of such corporation
entitled to vote generally in the election of directors
and (C) at least a majority of the members of the board
of directors of such corporation were members of the
Incumbent Board at the time of the execution of the
initial agreement or action of the Board providing for
such sale or other disposition of assets of the Company.
5. Severance Benefit.
Severance Benefits. If, within three years after a
Change of Control (as defined above) of the Company, you are
discharged without Cause or resign for Good Reason (as defined
below), the Company shall:
(i) pay to you within ten business days following the Date of
Termination (as defined below) a lump sum severance benefit
equal to (a) the greater of three times (1) your annual
salary, including deferrals, as in effect immediately prior to
the Change of Control, or (2) your annual salary including
deferrals, as in effect on the Date of Termination, plus (b)
the greater of (1) three times the average of the prior three
years' annual incentive compensation award earned by you under
the EnergyNorth, Inc. Key Employee Performance and Equity
Incentive Plan (the "Incentive Plan") or (2) three times your
"target" level of incentive compensation, for the year in
which the Date of Termination falls, under the Incentive Plan,
plus (c) interest on any delayed payment at the rate of 150%
of the Prime Rate as posted by BankBoston;
(ii) pay to you within ten business days following the Date of
Termination an additional lump sum severance benefit equal to
the amount of the annual incentive compensation award, at the
"target" level of incentive compensation for the year in which
the Date of Termination falls, under the Incentive Plan,
multiplied by a fraction, the numerator of which shall be the
number of days in the Incentive Plan Year in which the Date of
Termination takes place through and including the Date of
Termination, and the denominator of which shall be 365, plus
interest on any delayed payment at the rate of 150% of the
Prime Rate as posted by BankBoston.
(iii) to pay you within ten business days following the Date of
Termination an additional lump sum cash amount equal to the
present value of the excess of
(a) the aggregate benefit that would have been paid under the
EnergyNorth, Inc. Retirement Plan for Salaried Employees and the
EnergyNorth, Inc. Supplemental Executive Retirement Plan (the "Retirement
Plans") as in effect on the date of this Agreement, if you had
continued to be employed and to be entitled to service credit
for eligibility and benefit purposes during, and had
terminated on the last day of ("Deemed Termination Date") the
36-month period immediately following the actual Date of
Termination, over (b) the aggregate benefit actually payable
under the Retirement Plans and any successor retirement
program of the Company. For purposes of such calculation, the
following assumptions shall apply: (1) that you would continue
to be compensated during the 36-month period following
termination at annual rate of compensation equal to that used
to calculate the payments provided by 5(a)(i) above,
calculated on the basis of the compensation amount used in the
benefit formula under the Retirement Plans; (2) that you are
fully vested and entitled to receive a benefit under the
Retirement Plans if age and service requirements (based on the
age on, and assumed service you would have earned up to, the
Deemed Termination Date) satisfy the requirements for benefit
payments thereunder at any time; and (3) that the aggregate
benefit that would have been paid under the Retirement Plans
is as of either the normal or early retirement date for which
you would have qualified, if you were still employed on that
date, whichever would produce the highest present value amount
payable under this Section 5(a)(iii); and
(iv) continue to provide to you, for the thirty-six month
period following the Date of Termination, all health, dental,
vision and life insurance benefits ("Welfare Benefits")
pursuant to any and all qualified and non-qualified employee
benefit plans in which you were a participant on the Date of
Termination, as if you continued to be employed by the Company
during such thirty-six month period. Any and all Welfare
Benefits based on or with reference to your base salary shall
be calculated based upon the compensation determined pursuant
to Section 5(a)(i), and to the extent that any such Welfare
Benefits shall not be payable or provided to you under any
plan, the Company shall pay or provide such Welfare Benefits
to you on an individual basis. If the Company for any reason
is unable to continue the Welfare Benefits on an individual
basis, then the Company shall pay to you within ten business
days following the Date of Termination a lump sum cash amount
equal to the present value of the Welfare Benefits; and
(v) except to the extent prohibited under either of the
Retirement Plans, allow you at any time during the ninety day
period commencing on the Date of Termination, to retire as an
employee of the Company under the Retirement Plans and deem
the period commencing on the Date of Termination and ending on
the date of your retirement not to constitute a break in
service with respect to the Retirement Plans, provided that
you have satisfied the age and length-of-service requirements
set forth in the Retirement Plans.
(b) Good Reason. If any of the following events occurs
within five years after a Change of Control, you may
voluntarily terminate your employment within 30 days of the
occurrence of such event and be entitled to the severance
benefits set forth in Subsection (a) above:
(i) the Company assigns any duties to you which are
inconsistent with your position, duties, offices, titles,
responsibilities, reporting requirements or status with the
Company immediately prior to a Change of Control; or
(ii) the Company reduces your base salary, including
deferrals, as in effect immediately prior to a Change of
Control; or
(iii) the Company discontinues any bonus or other compensation
plans or any other benefit, stock ownership plan, stock
purchase plan, stock option plan, life insurance plan, health
plan, disability plan or similar plan (as the same existed
immediately prior to the Change of Control) in which you
participated or were eligible to participate in immediately
prior to the Change of Control and in lieu thereof does not
make available plans providing at least comparable benefits;
or
(iv) the Company takes action which adversely affects your
participation in, or eligibility for, or materially reduces
your benefits under, any of the plans described in (3) above,
or which deprives you of any material fringe benefit enjoyed
by you immediately prior to the Change of Control, or fails to
provide you with the number of paid vacation days to which you
were entitled in accordance with normal vacation policy
immediately prior to the Change of Control; or
(v) the Company requires you to be based at any office or
location other than one within a 50-mile radius of the
boundaries of EnergyNorth Natural Gas, Inc.'s franchise
territory as such boundaries existed immediately prior to the
Change in Control; or
(vi) the Company purports to terminate your employment
otherwise than as expressly permitted by this Agreement; or
(vii) the Company fails to comply with and satisfy Section 7,
provided that such successor has received at least ten days
prior written notice from the Company or from you of the
requirements of Section 7.
You shall have the sole right to determine, in good
faith, whether any of the above events has occurred. Anything
in this Agreement to the contrary notwithstanding, a
termination of employment by you for any reason during the 30-
day period immediately following the first anniversary of a
Change of Control ("Window Period") shall be deemed to be a
termination for Good Reason for all purposes of this
Agreement.
(c) Cause. Cause shall mean: conviction of a felony or
crime involving an act of moral turpitude, dishonesty, or
misfeasance which substantially interferes with the orderly
business of the Company or any of its subsidiaries, action
that directly or indirectly causes the Company or its
subsidiaries to suffer substantial loss or damage, refusal to
follow or material neglect of reasonable requests of the
Company made pursuant to this Agreement, and conduct that
substantially interferes with or damages the standing or
reputation of the Company or any of its subsidiaries.
(d) Notice of Termination. Any termination by the Company
for Cause, or by you for Good Reason, shall be communicated
by Notice of Termination to the other party hereto given in
accordance with Section 9. For purposes of this Agreement, a
"Notice of Termination" means a written notice which (i)
indicates the specific termination provision in this Agreement
relied upon, (ii) to the extent applicable, sets forth in
reasonable detail the facts and circumstances claimed to
provide a basis for termination of your employment under the
provision so indicated and (iii) if the Date of Termination
(as defined below) is other than the date of receipt of such
notice, specifies the termination date (which date shall be
not more than 15 days after the giving of such notice).
(e) Date of Termination. "Date of Termination" means (A) if
your employment is terminated by the Company for Cause, or by
you for Good Reason, the date of receipt of the Notice of
Termination or any later date specified therein, as the case
may be, (B) if your employment is terminated by the Company
other than for Cause or disability, the Date of Termination
shall be the date on which the Company notifies you of such
termination and (C) if your employment is terminated by reason
of death or disability, the Date of Termination shall be the
date of your death or the date you are determined to have a
disability under any long-term disability policy of the
Company which covers you, or, if none, as defined in the
EnergyNorth, Inc. Retirement Plan for Salaried Employees, as
the case may be.
(f) Other Benefits Payable. The severance benefit described
in Subsection (a) above shall be payable in addition to, and
not in lieu of, all other accrued or vested or earned by
deferred compensation, rights, options or other benefits which
may be owed to you following discharge or resignation (and not
contingent on any Change of Control preceding such
termination), including but not limited to accrued vacation or
sick pay, amounts or benefits payable, if any, under any bonus
or other compensation plans, stock option plan, stock
ownership plan, stock purchase plan, life insurance plan,
health plan, disability plan or similar plan.
(g) Excise Tax Make-Whole. In the event it shall be
determined that any payment or distribution by the Company to
you or for your benefit, whether paid or payable or
distributed or distributable pursuant to the terms of this
Agreement or otherwise (a "Payment"), would be subject to the
excise tax imposed by Section 4999 of the Internal Revenue
Code of 1986, as amended (the "Code") (or any successor
thereto) or comparable state or local tax or any interest or
penalties with respect to such excise tax or comparable state
or local tax (such excise tax, together with any such interest
and penalties, are hereinafter collectively referred to as the
"Excise Tax"), then you shall be entitled to receive
additional payment (a "Gross-Up Payment"). The Gross-Up
Payment shall be equal to the sum of the Excise Tax and all
taxes (including any interest or penalties imposed with
respect to such taxes) imposed upon the Gross-Up Payment.
If you determine that a Gross-Up Payment is
required, you shall so notify the Company in writing,
specifying the amount of Gross-Up Payment required and details
as to the calculation thereof. The Company shall, within 30
days, either pay such Gross-Up Payment (net of applicable wage
withholding) to you or furnish an unqualified opinion from
Independent Tax Counsel (as defined below), addressed to you
and the
Company, that there is substantial authority (within
the meaning of Section 6661 of the Code) for the position that
no Gross-Up Payment is required. "Independent Tax Counsel"
means a lawyer with expertise in the area of executive
compensation tax law, who shall be selected by you and shall
be reasonably acceptable to the Company, and whose fees and
disbursements shall be paid by the Company.
If the Internal Revenue Service or other tax
authority proposes in writing an adjustment to your income tax
would result in a Gross-Up Payment, you shall promptly notify
the Company in writing and shall refrain for at least thirty
days after giving such notice, if so permitted by law, from
paying any tax (including interest, penalties and additions to
tax) asserted to be payable as a result of such proposed
adjustment. Before the expiration of such period, the Company
shall either pay the Gross-Up Payment or provide an opinion
from Independent Tax Counsel to you and the Company as to
whether it is more likely than not that the proposed
adjustment would be successfully challenged if the matter were
to be litigated. If the opinion provides that a challenge
would be more likely than not to be successful if the issue
were litigated, and the Company requests in writing that you
contest such proposed adjustment, then you shall contest the
proposed adjustment and shall consult in good faith with the
Company with respect to the nature of all action to be taken
in furtherance of the contest of such proposed adjustment;
provided that you, after such consultation with the Company,
shall determine in your sole discretion the nature of all
action to be taken to contest such proposed adjustment,
including (A) whether any such action shall initially be by
way of judicial or administrative proceedings, or both, (B)
whether any such proposed adjustment shall be contested by
resisting payment thereof or by paying the same and seeking a
refund thereof, and (C) if you shall undertake judicial action
with respect to such proposed adjustment, the court or other
judicial body before which such action shall be commenced and
the court or other judicial body to which any appeals should
be taken. You agree to take appropriate appeals of any
judicial decision that would require the Company to pay a
Gross-Up Payment, provided the Company requests in writing
that you do so and provides an opinion from Independent Tax
Counsel to you and the Company that it is more likely than not
that the appeal would be successful. You further agree to
settle, compromise or otherwise terminate a contest with the
Internal Revenue Service or other tax authority with respect
to all or a portion of the proposed adjustment giving rise to
the Gross-Up Payment, if requested by the Company in writing
to do so at any time, in which case you shall be entitled to
receive from the Company the Gross-Up Payment. In no event
shall you compromise or settle all or any portion of a
proposed adjustment which would result in a Gross-Up Payment
without the written consent of the Company.
You shall not be required to take or continue
any action pursuant to this paragraph 5(g) unless the Company
acknowledges its liability under this Agreement in the event
that the Internal Revenue Service or other tax authority
prevails in the contest. The Company hereby agrees to
indemnify you in a manner reasonably satisfactory to you for
any fees, expenses, penalties, interest or additions to tax
which you may incur as a result of contesting the validity of
any Excise Tax and to pay you promptly upon receipt of a
written demand therefor all costs and expenses which you may
incur in connection with contesting such proposed adjustment
(including reasonable fees and disbursements of Independent Tax
Counsel); provided, however, that the Company shall not be
required to pay any amount necessary to permit your
institution of a claim for refund under this paragraph 5(g).
If you shall have contested any proposed
adjustment as above provided, and for so long as you shall be
required under the terms of this paragraph 5(g) to continue
such contest, the Company shall not be required to pay a Gross-
Up Payment until there occurs a Final Determination (as
defined below) of your liability for the tax and any interest,
penalties and additions to tax asserted to be payable as a
result of such proposed adjustment. A "Final Determination"
shall mean (A) a decision, judgment, decree or other order by
any court of competent jurisdiction, which decision, judgment,
decree or other order has become final after all allowable
appeals by either party to the action have been exhausted, the
time for filing such appeal has expired or you have no right
under the terms thereof to request an appeal, (B) a closing
agreement entered into under Section 7121 of the Code or any
other settlement agreement entered into in connection with an
administrative or judicial proceeding and with your consent,
or (C) the expiration of the time for instituting a claim for
refund, or if such a claim was filed, the expiration of the
time for instituting suit with respect thereto.
In the event you receive any refund from the
Internal Revenue Service or other tax authority on account of
an overpayment of Excise Tax, such amount, together with that
part of any Gross-Up Payment attributable to such amount,
shall be promptly paid by you to the Company.
Payment Obligations Absolute. Upon a Change of Control
the Company's obligations to pay the severance benefits or
make any other payments described in this Section 5 shall be
absolute and unconditional and shall not be affected by any
circumstances, including, without limitation, any set-off,
counterclaim, recoupment, defense or other right which the
Company or any of its subsidiaries may have against you or
anyone else. You shall not be required to mitigate damages,
and if you do accept other employment, any benefits or
payments hereunder shall not be reduced by any compensation
earned or other benefits received as a result of such
employment.
Legal Fees and Expenses. Subject to and contingent upon
the occurrence of a Change of Control the Company agrees to
pay promptly as incurred, to the full extent permitted by
law, all legal fees and expenses which you may reasonably
thereafter incur as a result of any contest, litigation or
arbitration (regardless of the outcome thereof) by the
Company, you or others of the validity or enforceability of,
or liability under, any provision of this Agreement (including
any contest by you about the amount of any payment pursuant to
this Agreement), plus in each case interest on any delayed
payment at the rate of 150%. of the Prime Rate posted by the
Bank of Boston.
(h) Retirement. If your employment is terminated due to
retirement, you shall not be entitled to severance benefits
under this Agreement, regardless of the occurrence of a Change
of Control. A termination by retirement shall have occurred
where your termination is caused by the fact that you have
reached normal retirement age for employees in your position.
6. Assignability. This Agreement is binding on and is for
the benefit of the parties hereto and their respective
successors, heirs, executors, administrators and other legal
representatives. Neither this Agreement nor any right or
obligation hereunder may be assigned by the Company (except to
any subsidiary or affiliate) or by you.
7. Successor. The Company shall require any successor
(whether direct or indirect, by purchase, merger,
consolidation or otherwise) to all or substantially all of the
business and/or assets of the Company to assume expressly and
agree to perform this Agreement in the same manner and to the
same extent that the Company would be required to perform. As
used in this Agreement, "Company" shall mean the company as
hereinbefore defined and any successor to its business and/or
assets as aforesaid which assumes and agrees to perform this
Agreement by operation of law, or otherwise.
8. Amendment; Waiver. This Agreement may be amended only by
an instrument in writing signed by the parties hereto, and any
provision hereof may be waived only by an instrument in
writing signed by the party or parties against whom or which
enforcement of such waiver is sought. The failure of either
party hereto at any time to require the performance by the
other party hereto of any provision hereof shall in no way
affect the full right to require such performance at any time
thereafter, nor shall the waiver by either party hereto of a
breach of any provision hereof be taken or held to be a waiver
of any succeeding breach of such provision or a waiver of the
provision itself or a waiver of any other provision of this
Agreement.
9. Notices . All notices and other communications hereunder
shall be in writing and shall be given by hand delivery to the
other party or by registered or certified mail, return receipt
requested, postage prepaid, addressed as follows:
If to you:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
If to the Company:
Director of Human Resources
EnergyNorth, Inc.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
P.O. Box 329
Manchester, NH 03105-0329
or to such other address as either party shall have furnished
to the other in writing in accordance herewith. Notice and
communications shall be effective when actually received by
the addressee.
10. Validity. The invalidity or unenforceability of any
provision or provisions of this Agreement shall not affect the
validity or enforceability of any other provision of this
Agreement, which shall remain in full force and effect, nor
shall the invalidity or unenforceability of a portion of any
provision of this Agreement affect the validity or
enforceability of the balance of such provision. If any
provision of this Agreement, or portion thereof is so broad,
in scope or duration, as to be unenforceable, such provision
or portion thereof shall be interpreted to be only so broad as
is enforceable.
11. Arbitration. Any dispute or controversy between the
parties relating to this Agreement shall be settled by binding
arbitration in the City of Manchester, State of New Hampshire,
pursuant to the governing rules of the American Arbitration
Association and shall be subject to the provisions of New
Hampshire Revised Statutes Annotated Chapter 542. Judgment
upon the award may be entered in any court of competent
jurisdiction.
12. Withholding. The Company may withhold from any amounts
payable under this Agreement such Federal, state or local
taxes as shall be permitted to be withheld pursuant to any
applicable law or regulation. The Company may withhold such
other amounts as may be permitted by law.
13. Entire Agreement. This Agreement contains the entire
understanding of the Company and you with respect to the
subject matter hereof.
14. Applicable Law. This Agreement shall be governed by and
construed in accordance with the substantive internal law and
not the conflict of law provisions of the State of New
Hampshire.
If the terms of the foregoing Agreement are acceptable to
you, please sign and return to the Company the enclosed copy
of this Agreement whereupon this Agreement shall become a
valid and legally binding contract between you and the
Company.
Very truly yours,
ENERGYNORTH, INC.
By: /S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
Chairman, Compensation Committee
Accepted and Agreed as of the
date first above written:
/S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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December 21, 1998