1
EXHIBIT 10(a)
LONG ISLAND LIGHTING COMPANY EXECUTIVE EMPLOYMENT AGREEMENT
THIS AGREEMENT, made and entered into as of the 4th day of
August 1995, by and between LONG ISLAND LIGHTING COMPANY, a New York
corporation (hereinafter referred to as the "Company"), and ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇▇▇ (hereinafter referred to as "Executive").
W I T N E S S E T H :
WHEREAS, the Executive is employed by the Company as its Chief
Executive Officer;
WHEREAS, the Executive is entitled to post-employment benefits
under his employment agreement dated as of January 30, 1984 (the "Employment
Agreement") as amended from time to time; and
WHEREAS, the Company desires to provide Executive with
incentives for continuation of his current services as Chief Executive Officer
with respect to a possible Change of Control (as defined herein); and
WHEREAS, it is necessary to coordinate the provisions of
various agreements between the Company and Executive with respect to a Change
of Control;
WHEREAS, the Board desires to ensure that the Company will
have the benefit of Executives's advice, counsel and management expertise,
while a Change in Control transaction is pending and until its completion; and
NOW, THEREFORE, in consideration of the foregoing and of the
mutual covenants and agreements hereinafter set forth, the parties hereto
mutually covenant and agree as follows:
(A) Base Salary means the Executive's highest base salary,
including the annual base salary in effect on January 1, 1995.
(B) Cause. "Cause" for termination by the Company of the
Executive's employment shall mean "for cause" as defined in Section 1(e) of the
Employment Agreement.
(C) Change of Control. The term "Change of Control" means an
event which shall be deemed to have occurred if:
(i) any "person" as such term is used in Section 13(d)
and 14(d) of the Securities Exchange Act of 1934 (the "Exchange Act")
(other than the Company, any trustee or other fiduciary holding
securities under any employee benefit plan of the Company, or any
company owned, directly or indirectly, by the stockholders of the
2
Company in substantially the same proportions as their ownership of
stock of the Company) is or becomes the "beneficial owner" (as defined
in Rule 13d-3 under the Exchange Act), directly or indirectly, of
securities of the Company representing 40% or more of the combined
voting power of the Company's then outstanding securities;
(ii) during any period of two consecutive years,
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 clause (iii) or (iv) herein) whose election by the Board
or nomination for election by the Company's stockholders 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 at least a majority thereof;
(iii) the stockholders of the Company approve a merger or
consolidation of the Company with any other corporation, other than a
merger or consolidation 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) more than 80% of the
combined voting power of the voting securities of the Company or such
surviving entity outstanding immediately after such merger or
consolidation; provided, however, that a merger or consolidation
effected to implement a recapitalization of the Company (or similar
transaction) in which no "person" (as hereinabove defined) acquires
more than 25% of the combined voting power of the Company's then
outstanding securities shall not constitute a Change of Control;
(iv) the stockholders of the Company approve a plan of
complete liquidation of the Company or an agreement for the sale or
disposition by the Company of, or the Company sells or disposes of,
all or substantially all of the Company's assets or all or
substantially all of the assets of the Company acquired for or used in
the electric utility business of the Company, or any such sale or
disposition is effected through condemnation proceedings; or
(v) the Board of Directors shall approve an agreement to
effect a Change of Control, and in connection therewith, the Board of
Directors approves the Executive's termination of his employment as
Chief Executive Officer and the commencement of his employment as a
consultant pursuant to section 6 of his Employment Agreement.
The Chief Legal Officer shall notify the parties to this Agreement as
to whether and when a Change of Control has occurred. The preceding sentence
shall not preclude any other party to this Agreement from giving such notice.
(D) Company. Upon the occurrence of any merger or
consolidation described in Section 1(B)(iii) in which the Company is not the
surviving entity and which is not a Change of
- 2 -
3
Control, "Company" shall thereafter for all purposes hereof be deemed to mean
such surviving entity and in such event "Company" for purposes of Section
1(B)(ii) shall mean Long Island Lighting Company prior to such event and such
surviving entity thereafter.
(E) Notice of Termination. "Notice of Termination" shall
mean a notice delivered by the Company or the Executive, as the case may be,
and stating that the Executive's employment with the Company is terminated.
(F) Limited Waiver. The waiver by the Company of a
violation of any provisions of this Agreement, whether express or implied,
shall not operate or be construed as a waiver of any subsequent violation of
any such provision.
(G) Code. For purposes of this Agreement, the term
"Code" means the Internal Revenue Code of 1986, including any amendments
thereto or successor tax codes thereof. References to any section of the Code
shall include any amended or successor section of comparable import.
(H) Covered Termination. For purposes of this Agreement,
the term "Covered Termination" means any termination of the Executive's
employment where the Termination Date is any date prior to the end of the
Employment Period.
(I) Employment Period. For purposes of this Agreement,
the term "Employment Period" means a period commencing on the date of a Change
of Control of the Company, and ending at 11:59 p.m. Eastern Time on the third
anniversary of such date.
(J) Good Reason. For purposes of this Agreement, the
Executive shall have a "Good Reason" for termination of employment after a
Change of Control of the Company in the event of:
(i) a termination of the Executive's employment by the
Company, including a termination described in Section 1(B)(v), for any
reason other than Cause;
(ii) a good faith determination by the Executive that
there has been a significant adverse change, without the Executive's
written consent, in the Executive's working conditions or status with
the Company from such working conditions or status in effect
immediately prior to the Change of Control of the Company, including
but not limited to (A) a significant change in the nature or scope of
the Executive's authority, powers, functions, duties or
responsibilities, or (B) a significant reduction in the level of
support services, staff, secretarial and other assistance, office
space and accoutrements (regardless of whether such reduction is part
of a general reduction applicable to such items at the Company); or
- 3 -
4
(iii) other than with respect to a Change of Control
described in Section 1(B)(v), any voluntary termination of employment
by the Executive for any reason other than Cause where the Notice of
Termination is given more than three months after the date on which
there is a Change of Control of the Company, but not after the date
which is the third anniversary of such Change of Control of the
Company.
(K) Person. For purposes of this Agreement, the term
"Person" shall mean any individual, firm, partnership, corporation or other
entity, including any successor (by merger or otherwise) of such entity, or a
group of any of the foregoing acting in concert.
(L) Termination Date.
(i) For purposes of this Agreement, the term "Termination
Date" means (a) if the Executive's employment is terminated by the
Executive's death, the date of death; (b) if the Executive's
employment is terminated by reason of voluntary early retirement, as
agreed in writing by the Company and the Executive, the date of such
early retirement which is set forth in such written agreement; (c) if
the Executive's employment is terminated for purposes of this
Agreement by reason of disability, as defined in the Retirement Income
Plan of the Company (as in effect on the date hereof), the earlier of
thirty days after the Notice of Termination is given or one day prior
to the end of the Employment Period; (d) if the Executive's employment
is terminated by the Executive voluntarily (other than for Good
Reason), the date the Notice of Termination is given; and (e) if the
Executive's employment is terminated by the Company (other than by
reason of disability) or by the Executive for Good Reason, the earlier
of thirty days after the Notice of Termination is given or one day
prior to the end of the Employment Period, except that if the Notice
of Termination is given on or prior to the third anniversary of the
date of the Change of Control of the Company, the Termination Date
shall be deemed to have occurred no later than the third anniversary
of the date of the Change of Control of the Company. Notwithstanding
the foregoing:
(ii) If termination is "for Cause" pursuant to Section
1(A) and if the Executive has "cured the conduct" constituting such
Cause as described by the Company in its Notice of Termination within
such thirty day or shorter period, then the Executive's employment
hereunder shall continue as if the Company had not delivered its
Notice of Termination.
(iii) If the party receiving the Notice of Termination
notifies the other party that a dispute exists concerning the
termination and it is finally determined that the reason asserted in
such Notice of Termination did not exist, then (a) if such Notice was
delivered by the Executive, the Executive will be deemed to have
voluntarily terminated his employment and the Termination Date shall
be the earlier of the date fifteen days after the Notice of
Termination is given or one day prior to the end of the Employment
Period and
- 4 -
5
(b) if delivered by the Company, the Company will be deemed to have
terminated the Executive other than by reason of death, disability or
Cause.
1. Termination or Cancellation Prior to Change of
Control. In the event (A) the Executive's employment is terminated prior to a
Change of Control of the Company, or (B) no Change of Control of the Company
occurs prior to December 31, 1999, this Agreement shall be terminated and
canceled and of no further force and effect, and any and all rights and
obligations of the parties hereunder shall cease. The termination of this
Agreement shall have no effect on the rights and obligations of the Company and
Executive under his Employment Agreement or any other Agreement between the
parties.
2. Benefits. If there is a Covered Termination, the
Executive shall be entitled to the following benefits:
(A) Accrued Benefits. The Executive shall be paid the
amount of the Executive's Accrued Benefits. For purposes of this Agreement,
the Executive's "Accrued Benefits" shall include the following amounts, payable
as described herein: (i) all Base Salary, and accrued vacation pay determined
on the basis of Base Salary, for the time period ending with the Termination
Date; (ii) reimbursement for any and all monies or other reimbursable costs
advanced in connection with the Executive's employment for reasonable and
necessary expenses incurred by the Executive on behalf of the Company for the
time period ending with the Termination Date; (iii) any and all other cash
earned through the Termination Date and deferred at the election of the
Executive or pursuant to any deferred compensation plan then in effect, and any
increments thereon as determined under such plan; and (iv) a lump sum payment
of the bonus or incentive compensation otherwise payable to the Executive with
respect to the year in which termination occurs, or for the prior year, under
all bonus or incentive compensation plans in which the Executive is a
participant. Payment of Accrued Benefits shall be made promptly in accordance
with the Company's prevailing practice and shall not in any way affect
Executive's rights under the Employment Agreement.
(B) Welfare Benefits. Until the expiration of the
Consulting Term (as described in the Employment Agreement), the Executive shall
continue to be covered, at the expense of the Company, by the same or
equivalent welfare benefits, including life insurance, hospitalization,
medical, dental, disability and travel accident benefits, as were provided to
the Executive immediately prior to the commencement of such Consulting Term.
The amount of such benefits shall be determined on the basis of the Executive's
highest rate of pay in effect at any time, prior to the start of the Consulting
Term. The term "rate of pay" means (i) Executive's Base Salary and (ii)
benefits paid or due pursuant to the Executive Incentive Compensation Plan of
Long Island Lighting Company otherwise payable to the Executive with respect to
the year in which termination occurs, or for the prior year.
(C) Contractual Retirement Benefits. During the period in
which Executive provides the consulting services referred to in his Employment
Agreement, the Company shall
- 5 -
6
make the periodic payments of Retirement Benefits provided under the Employment
Agreement until such time as a Change in Control (as defined in the Employment
Agreement) takes place. Furthermore, at the time a Change in Control (as
defined in the Employment Agreement) takes place, the Company or the Trustee of
the Deferred Compensation Trust shall make the payment of the Actuarial
Equivalent lump-sum payment, required by the provisions of Section 6.7 of the
Deferred Compensation Trust, dated January 7, 1987, without regard to whether
the Executive's employment terminated prior to, or subsequent to, a Change of
Control.
(D) Termination of Consulting Services. In the event
that the Board of Directors determines, for any reason, that Executive's
consulting services during the Consulting Term are not required because of the
circumstances leading to a Change of Control, (i) the Company or the Trustee of
the Original Term and Consulting Term Compensation Trust shall pay the dollar
amount of the compensation payable for such services in a lump sum without any
adjustment for early payment, and (ii) the Company shall continue to provide
the welfare benefits described in (B) above. In such event, the Executive
shall be discharged of any obligation to provide consulting services during the
Consulting Term.
(E) Supplemental Death and Retirement Benefit Plans.
Executive qualifies by reason of age and service for the benefit provided under
the Supplemental Death and Retirement benefit Plan. Payment of the benefit
elected under such plan shall commence at the time that the supplemental death
benefit provided pursuant to paragraph B. above terminates.
(F) Severance Payment. The Executive will be entitled to
cash compensation equal to three (3) years pay, calculated as described below,
payable in equal monthly installments. The aggregate cash compensation will be
calculated as the greater of three (3) times (i) the Executive's current rate
of Base Salary at the Termination Date or (ii) the Executive's highest annual
rate of Base Salary within three (3) years prior to the Change of Control.
Cash compensation paid pursuant to this provision shall be subject to
appropriate payroll deductions.
(G) Tax Gross-Up.
(i) In the event that the Executive becomes entitled to
payments in connection with a Change in Control or his termination of
employment (the "Payments"), if any of the Payments will be subject to
the tax imposed by Section 4999 of the Code (or any similar tax that
may hereafter be imposed) (the "Excise Tax"), the Company shall pay to
Executive an additional amount (the "Gross-Up Payment") such that the
net amount retained by him, after deduction of any Excise Tax on the
Payments and any federal, state and local income tax and Excise Tax
upon the payment provided for by this paragraph, shall be equal to the
Payments. For purposes of determining whether any of the Payments
will be subject to the Excise Tax and the amount of such Excise Tax,
(a) any other payments or benefits received or to be received by
Executive in connection with a Change of Control or his termination of
employment (whether pursuant to the terms of this Agreement or any
plan, arrangement or agreement with the Company or any person
- 6 -
7
whose actions result in a Change of Control or any person affiliated
with the Company or such person) shall be treated as "parachute
payments" within the meaning of Section 280G(b)(2) of the Code, and
all "excess parachute payments" within the meaning of Section
280G(b)(1) shall be treated as subject to the Excise Tax, unless in
the opinion of tax counsel selected by the Company's independent
auditors, and consented to in writing by the Executive, which consent
shall not be unreasonably withheld, such other payments or benefits
(in whole or in part) do not constitute parachute payments, or such
excess parachute payments (in whole or in part) represent reasonable
compensation for services actually rendered before the date of the
change within the meaning of Section 280G(b)(4) of the Code in excess
of the base amount within the meaning of Section 280G(b)(3) of the
Code, or are otherwise not subject to the Excise Tax, (b) the amount
of the Payments which shall be treated as subject to the Excise Tax
shall be equal to the lesser of (1) the total amount of the Payments
or (2) the amount of excess parachute payments within the meaning of
Section 280G(b)(1) (after applying clause (a), above), and c the value
of any non-cash benefits or any deferred payment or benefit shall be
determined by the Company's independent auditors in accordance with
the principles of Sections 280G(d)(3) and (4) of the Code.
For purposes of determining the amount of the Gross-Up
Payment, the Executive shall be deemed to pay federal, state and local
income taxes at the highest marginal rate of federal, state and local
income taxation in the calendar year in which the Gross-Up Payment is
to be made. In the event that the Excise Tax is subsequently
determined to be less than the amount taken into account hereunder at
the time of termination of Executive's employment, he shall repay to
the Company at the time that the amount of such reduction in Excise
Tax is finally determined the portion of the Gross-Up Payment
attributable to such reduction (plus the portion of the Gross-Up
Payment attributable to the Excise Tax and federal, state and local
income tax imposed on the Gross-Up Payment being repaid by Executive
if such repayment results in a reduction in Excise Tax and/or a
federal, state and local tax deduction) plus interest on the amount of
such repayment at the rate provided in Section 1274(b)(2)(B) of the
Code, applied by treating the period between initial payment of the
Gross-Up Payment and the repayment in respect thereof as the term of
the debt instrument referred to in section 1274(d)(1)(A) of the Code.
In the event that the Excise Tax is determined to exceed the amount
taken into account hereunder at the time of the termination of
Executive's employment (including by reason of any payment the
existence or amount of which cannot be determined at the time of the
Gross-Up Payment), the Company shall make an additional Gross-Up
Payment in respect of such excess (plus any interest payable with
respect to such excess) at the time that the amount of such excess is
finally determined.
(ii) A Gross-Up Payment shall be made not later than the
fifth day, or as soon thereafter as the Company in good ▇▇▇▇▇ ▇▇▇▇▇
practicable, following the date Executive becomes subject to payment
of excise tax; provided, however, that if the amounts of such payment
cannot be finally determined on or before such day, the Company shall
pay to
- 7 -
8
Executive on such day an estimate, as determined in good faith by the
Company, of the minimum amount of such payments and shall pay the
remainder of such payment (together with interest at the rate provided
under Section 1274(b)(2)(B) of the Code) as soon as the amount can be
determined but no later than the thirtieth day after the date
Executive becomes subject to the payment of excise tax. In the event
the amount of the estimated payment exceeds the amount subsequently
determined to have been due, such excess shall constitute a loan by
the Company to Executive, payable on the fifth day after demand by the
Company (together with interest at the rate provided in Section
1274(b)(2)(B) of the Code).
3. Further Obligations of the Executive. The Executive
agrees that, in the event of any Covered Termination where the Executive is
entitled to Accrued Benefits and the Termination Payment, the Executive shall
hold in confidence and not directly or indirectly disclose or use or copy or
make lists of any confidential information or proprietary data of the Company,
except to the extent authorized in writing pursuant to authorization by the
Board of Directors of the Company or required by any court or administrative
agency, other than to an employee of the Company or a person to whom disclosure
is reasonably necessary or appropriate in connection with the performance by
the Executive of duties as an executive of the Company. Confidential
information shall not include any information known generally to the public or
any information of a type not otherwise considered confidential by persons
engaged in the same business or a business similar to that of the Company. All
records, files, documents and materials, or copies thereof, relating to the
business of the Company which the Executive shall prepare, or use, or come into
contact with, shall be and remain the sole property of the Company and shall be
promptly returned to the Company upon termination of employment with the
Company.
4. Expenses and Interest. If, after a Change of Control
of the Company, (A) a dispute arises with respect to the enforcement of the
Executive's rights under this Agreement or (B) any legal or arbitration
proceeding shall be brought to enforce or interpret any provision contained
herein or to recover damages for breach hereof, the Executive shall recover
from the Company any reasonable attorneys' fees and necessary costs and
disbursements, including without limitation expert witness fees, incurred as a
result of such dispute, legal or arbitration proceeding ("Expenses"), and
prejudgment interest on any money judgment or arbitration award obtained by the
Executive calculated at the rate of interest announced by ▇▇▇▇▇▇ Guaranty Trust
Company of New York from time to time as its prime or base lending rate from
the date that payments to him should have been made under this Agreement.
Within ten days after the Executive's written request therefor (which, without
limitation, may be made periodically or from time to time based on the date or
dates at which the Executive is billed for services and related expenses which
are reimbursable as "Expenses" hereunder), the Company shall pay to the
Executive, or such other person or entity as the Executive may designate in
writing to the Company, the Executive's reasonable Expenses in advance of the
final disposition or conclusion of any such dispute, legal or arbitration
proceeding.
- 8 -
9
5. Payment Obligations Absolute. The Company's
obligation during and after the Employment Period to pay the Executive the
amounts and to make the benefit and other arrangements provided herein shall be
absolute and unconditional and shall not be affected by any circumstances,
including, without limitation, any setoff, counterclaim, recoupment, defense or
other right which the Company may have against him or anyone else. All amounts
payable by the Company hereunder shall be paid without notice or demand. Each
and every payment made hereunder by the Company shall be final, and the Company
will not seek to recover all or any part of such payment from the Executive, or
from whomsoever may be entitled thereto, for any reason whatsoever.
6. Successors.
(A) If the Company sells, assigns or transfers all or
substantially all of its business and assets to any Person or if the Company
merges into or consolidates or otherwise combines (where the Company does not
survive such combination) with any Person (any such event, a "Sale of
Business"), then the Company shall assign all of its right, title and interest
in this Agreement as of the date of such event to such Person, and the Company
shall cause such Person, by written agreement in form and substance reasonably
satisfactory to the Executive, to expressly assume and agree to perform from
and after the date of such assignment all of the terms, conditions and
provisions imposed by this Agreement upon the Company. In case of such
assignment by the Company and of assumption and agreement by such Person, as
used in this Agreement, "Company" shall thereafter mean such Person which
otherwise becomes bound by all the terms and provisions of this Agreement by
operation of law, and this Agreement shall inure to the benefit of, and be
enforceable by, such Person. The Executive shall, in his discretion, be
entitled to proceed against any or all of such Persons, any Person which
theretofore was such a successor to the Company (as defined in the first
paragraph of this Agreement) and the Company (as so defined) in any action to
enforce any rights of the Executive hereunder. Except as provided in this
Subsection, this Agreement shall not be assignable by the Company. This
Agreement shall not be terminated by the voluntary or involuntary dissolution
of the Company.
(B) This Agreement and all rights of the Executive shall
inure to the benefit of and be enforceable by the Executive's personal or legal
representatives, executors, administrators, heirs and beneficiaries. All
amounts payable to the Executive under this Agreement, if the Executive had
lived shall be paid, in the event of the Executive's death, to the Executive's
estate, heirs and representatives; provided, however, that the foregoing shall
not be construed to modify any terms of any benefit plan of the Company or of
any agreement or arrangement of the Company with respect to benefits, as such
terms are in effect on the date of the Change of Control of the Company, that
expressly govern benefits under such plan, agreement or arrangement in the
event of the Executive's death.
7. Severability. The provisions of this Agreement shall
be regarded as divisible, and if any of said provisions or any part hereto are
declared invalid or unenforceable by
- 9 -
10
a court of competent jurisdiction, the validity and enforceability of the
remainder of such provisions or parts hereof and the applicability thereof
shall not be affected thereby.
8. Amendment. This Agreement may not be amended or
modified at any time except by written instrument executed by the Company and
the Executive.
9. Withholding. The Company shall be entitled to
withhold from amounts to be paid to the Executive hereunder any federal, state
or local withholding or other taxes or charges which it is from time to time
required to withhold; provided, that the amount so withheld shall not exceed
the minimum amount required to be withheld by law. The Company shall be
entitled to rely on an opinion of nationally recognized tax counsel if any
question as to the amount or requirement of any such withholding shall arise.
10. Governing Law; Resolution of Disputes. This
Agreement and the rights and obligations hereunder shall be governed and
construed in accordance with the laws of the State of New York. Any dispute
arising out of this Agreement shall, at the Executive's election, be determined
by arbitration under the rules of the American Arbitration Association then in
effect (in which case both parties shall be bound by the arbitration award) or
by litigation. Whether the dispute is to be settled by arbitration or
litigation, the venue for the arbitration or litigation shall be New York or,
at the Executive's election, if the Executive is no longer residing or working
in the New York metropolitan area, in the judicial district encompassing the
city in which the Executive resides; provided, that, if the Executive is not
then residing in the United States, the election of the Executive with respect
to such venue shall be either in New York, New York or in the judicial district
encompassing that city in the United States among the thirty cities having the
largest population (as determined by the most recent United States Census data
available at the Termination Date) which is closest to the Executive's
residence. The parties consent to personal jurisdiction in each trial court in
the selected venue having subject matter jurisdiction notwithstanding their
residence or situs, and each party irrevocably consents to service of process
in the manner provided hereunder for the giving of notices.
11. Payment from Trust Funds. The Company has
established various Trust Funds in order to assure payment by the Company of
obligations under the Employment Agreement, its various benefit programs and
pursuant to this Agreement. In the event that the Company or its successors or
assigns shall not make a payment required by this Agreement or pursuant to any
employment arrangement or agreement with respect to which a Trust has been
established, the Trustee of such Trust, consistent with the terms and
conditions of the Trust, shall make the payment required of the Company without
any need to inquire into the obligations of the Executive to the Company under
this Agreement.
- 10 -
11
12. Notices. All notices hereunder shall be in writing
and deemed properly given if delivered by hand and receipted or if mailed by
registered mail, return receipt requested. Notices to the Company shall be
directed to the Corporate Secretary at the Company's headquarters offices.
Notices to the Executive shall be directed to his last known home address.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement dated this 4th day of August, 1995.
LONG ISLAND LIGHTING COMPANY
BY: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
General Counsel
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
----------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
- 11 -
12
Agreement made and entered into as of 31st day of May, 1995,
by and between LONG ISLAND LIGHTING CO., a New York corporation ("Company") and
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, a resident of the State of New York ("Executive")
amending the Agreement dated January 30, 1984, as heretofore amended.
WHEREAS, the Company and Executive entered into an Agreement
on January 30, 1984 with regard to the employment and post-termination Contract
Benefits of Executive;
WHEREAS, the amount of such Contract Benefits was increased by
an Amendment dated December 22, 1989;
NOW, THEREFORE, the Board, having reviewed the compensation
and benefits payable to the Executive, desires to recognize the continuing
value to the Company of Executive's leadership, advice, counsel and management
expertise, and the increased demands on Executive occasioned by recent
developments, by causing the Company to enter into the following amendment to
the above described Agreement:
1) The definition of "Considered Compensation" in Section 4(b)(i)
of the Agreement dated 30 January 1984, as amended by the Agreement dated as of
22 December 1989, is amended to read as follows:
"Considered Compensation" shall be an amount equal to sixty-five
percent (65%) of the highest annual rate of
13
Base Salary (including, but not limited to, the Base Salary in effect
on January 1, 1995) payable to Executive pursuant to Section 3 above
at any time prior to the commencement of the Consulting Term.
2) The parties agree that, for the purpose of the foregoing, the
highest annual rate of base salary as of the date hereof, is $633,809.
3) This amendment shall be taken into account as if it had been
contained in the original Agreement.
IN WITNESS WHEREOF, Executive has hereunto set his hand, and
pursuant to the authorization of the Board of Directors, Company has caused
these presents to be executed in its name and for and on its behalf, and its
corporate seal to be hereunto affixed and attested by its Secretary, all as of
the day and year first above written.
LONG ISLAND LIGHTING COMPANY
▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: General Counsel
Attest:
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Assistant Secretary
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
----------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Cleft Road, ▇▇▇▇▇▇▇ ▇▇▇▇
Mill Neck, N. Y. 11765
14
Amendment, Dated August 4, 1995, to the Agreement dated January 30, 1984
between LONG ISLAND LIGHTING COMPANY, a New York
Corporation (the "Company") and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇ (the "Executive")
WHEREAS, the Company and the Executive entered into an agreement on
the 30th day of January 1984 with regard to the employment of the Executive
(the "Agreement");
WHEREAS, the Agreement has been previously amended from time to time;
WHEREAS, the Board at its May 31, 1995 meeting determined that,
because shareowners will benefit from the Executive's current and future
service, Executive's benefits should be based on Executive's highest salary
during the term of his employment; and
WHEREAS, the Company and the Executive by this agreement desire to
make additional amendments to certain provisions of the Agreement regarding
remuneration and the benefits paid pursuant to the Agreement (the "Amendment");
NOW, THEREFORE, the Company and the Executive agree as follows:
1. Section 3c will be amended to insert the following paragraph
at the end of the last sentence:
For purpose of this Agreement except as identified below, each
of the Executive's benefits shall be calculated utilizing the
Executive's highest rate of annual pay in effect at any time during
the term of this Agreement, including his annual salary in effect on
January 1, 1995. The benefits provided under the Retirement Income
Plan of Long Island Lighting Company and the Long Island Lighting
Company 401(k) Capital Accumulation Plan for Non-Union Employees,
which depends in whole, or in part, upon the Executive's base salary,
will be determined in accordance with the provision of each plan.
Additionally, Section 3c will be amended to insert the words:
"vacation pay plan" after the words: "deferred compensation." For example, if
30 vacation days are not used by the Executive, he will be entitled to
compensation for those 30 days at his highest rate of annual pay in effect at
any time during the term of this Agreement, including his annual salary in
effect on January 1, 1995.
2. The definition of "Considered Compensation" in Section 4(b)(i)
shall be amended and restated to read as follows:
"Considered Compensation" shall be an amount equal to sixty-five
percent (65%) of the Executive's highest rate of annual pay in effect
at any time during the term of this Agreement, including his rate of
pay in effect on January 1, 1995.
15
3. Section 4(c)(i) will be amended to substitute "Retirement
Income Plan of Long Island Lighting Company" for "Long Island Lighting Company
Retirement Income Plan."
4. The first paragraph of Section 6(f) will be deleted and the
following paragraph will be inserted:
During the Consulting Term, whether or not the Company avails
itself of Executive's consulting services pursuant to Section 6c above
and regardless of the amount of compensation received by Executive in
pursuing an outside business career, Company shall pay Executive a
consulting fee equal to the following percentages of Executive's
highest rate of pay in effect at any time during the term of this
Agreement including his annual rate of pay in effect on January 1,
1995:
These Amendments shall taken into account as if they had been
contained in the original Agreement.
IN WITNESS WHEREOF, Executive has hereunto set his hand, and pursuant
to the authorization from the Board of Directors, Company has caused these
present to be executed in its name and for and on its behalf and its corporate
seal to be hereunto affixed and attested by its Secretary, all as of the day
and year first above written.
LONG ISLAND LIGHTING COMPANY
▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: General Counsel
Attest:
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------
Secretary
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
-------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Cleft Road, Laurel Hill
Mill Neck, N.Y. 11765
