CONFIDENTIAL SEPARATION AGREEMENT
AND GENERAL RELEASE
THIS AGREEMENT, made and entered into as of this 20th day of
December, 2000, by and between Northeast Utilities Service Company, a
Connecticut corporation, with its principal office in Berlin, Connecticut,
(together with each direct and indirect affiliated company that has adopted the
Employment Agreement entered into on February 25, 1997 (the "Employment
Agreement"), with Northeast Utilities Service Company, hereinafter, the
"Company"), and Xxxx X. XxxXxxxxx, a resident of Madison, Connecticut
("Executive").
W I T N E S S E T H:
WHEREAS, the Company had heretofore employed Executive under
the Employment Agreement; and
WHEREAS, Executive's employment has been terminated upon a
Change in Control, as that phrase is defined in the Employment Agreement,
effective December 31, 2000, and the Notice of Termination, required by Section
6.2 of the Employment Agreement, is hereby waived; and
WHEREAS, the Company and Executive wish to enter into an
agreement to provide for a mutual release as to any claims including, without
limitation, claims that might be asserted by Executive under the Employment
Agreement and the Age Discrimination in Employment Act, as further described
herein, and reaffirm Executive's right to indemnification;
NOW, THEREFORE, in consideration of the mutual promises
contained herein, the parties hereto, intending to be legally bound, hereby
agree as follows:
1. The Company and Executive hereby agree that Executive's
termination upon a Change in Control, as that phrase is defined in the
Employment Agreement, shall be effective on December 31, 2000 and that the
Notice of Termination required by Section 6.2 of the Employment Agreement is
hereby waived. The Company and Executive further agree that the Employment
Agreement shall continue only to the extent provided therein as to obligations
that survive the termination of Executive's employment.
2. Executive agrees and acknowledges that the Company, on a
timely basis, has paid, or agreed to pay, to Executive all other amounts due and
owing based on Executive's prior services in accordance with the terms of the
Employment Agreement or any other contract with Executive, whether express or
implied, and that the Company has no obligation, contractual or otherwise to
Executive, except as provided herein, in the Employment Agreement or any other
such contract with Executive, nor does it have any obligation to hire, rehire or
re-employ Executive in the future. Notwithstanding the foregoing, nothing
contained in this Agreement
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shall prevent Executive from requiring the Company to fulfill its obligations
under this Agreement, under the Employment Agreement, to the extent of any
continuing obligations thereunder, under any employee benefit plan, as defined
in Section 3(3) of ERISA, maintained by the Company and in which Executive
participated, or any other contract with Executive, whether express or implied.
3. In full and complete settlement of any claims that
Executive may have against the Company, including any possible violations of the
Age Discrimination in Employment Act ("ADEA"), 29 U.S.C.ss.621, et seq., in
connection with Executive's termination of employment, and for and in
consideration of the undertakings of the Company described herein, Executive
does hereby REMISE, RELEASE, AND FOREVER DISCHARGE the Company, and each of its
past, present and future subsidiaries and affiliates, their officers, directors,
shareholders, partners, employees and agents, and their respective successors
and assigns, heirs, executors and administrators (hereinafter all included
within the term "the Company"), of and from any and all manner of actions and
causes of actions, suits, debts, claims and demands whatsoever in law or in
equity, which Executive ever had, now has, or hereafter may have, or which
Executive's heirs, executors or administrators hereafter may have, by reason of
any matter, cause or thing whatsoever from the beginning of Executive's
employment to the termination of Executive's employment; and particularly, but
without limitation of the foregoing general terms, any claims arising from or
relating in any way to Executive's employment relationship or the Employment
Agreement to the extent of any obligation that does not survive Executive's
termination of employment and Executive's termination from that employment
relationship, including but not limited to, any claims which have been asserted,
could have been asserted, or could be asserted now or in the future under any
federal, state or local laws, including any claims under the Age Discrimination
in Employment Act ("ADEA"), 29 U.S.C.ss.621, et seq., and the Older Workers'
Benefit Protection Act, 29 U.S.C.ss.626(f)(1), and any claims under Section 210
or Section 211 of the Energy Reorganization Act of 1974, 42 U.S.C.ss.5851, the
National Energy Policy Act of 1992, Pub. L. No. 102-486, Title VII of the Civil
Rights Act of 1964, 42 X.X.X.xx. 2000e, et seq., the Labor Management Relations
Act, the Employee Retirement Income Security Act of 1974 ("ERISA"), the
Rehabilitation Act of 1973, the Civil Rights Act of 1991, the Americans with
Disabilities Act ("ADA"), 42 U.S.C.ss.12101, et seq., the Family and Medical
Leave Act of 1993, 29 U.S.C.ss.2601, et seq., the Fair Labor Standards Act, the
National Labor Relations Act, the Connecticut Fair Employment Practices Act,
Conn. Gen. Stat.ss.ss.46a-60 - 46a-62 (1995), and any other federal, state, or
local statute, ordinance, regulation, rule of decision or common law recognized
now or in the future and all claims for counsel fees and costs. Notwithstanding
the foregoing, nothing contained in this Agreement shall prevent Executive from
requiring the Company to fulfill its obligations under this Agreement, under the
Employment Agreement, to the extent of any continuing obligations thereunder,
under any employee benefit plan, as defined in Section 3(3) of ERISA, maintained
by the Company and in which Executive participated, or any other contract with
Executive, whether express or implied.
4. Nothing in this Agreement shall be construed to prohibit
or otherwise discourage Executive from reporting, providing testimony regarding,
cooperating in, or otherwise communicating any suspected instance of illegal
activity of any nature, any nuclear
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safety concern, workplace safety concern, or public safety concern to the U.S.
Nuclear Regulatory Commission, the U.S. Department of Labor, or any federal or
state government agency, or any matter involving the substantial misfeasance,
malfeasance or nonfeasance in the management of the Company to the Connecticut
Department of Public Utility Control. The parties further acknowledge,
understand, and agree that the provisions of this Agreement are not intended to
restrict Executive's communication with, or full cooperation in proceedings or
investigations by, any agency relating to nuclear regulatory or safety issues,
or any matter involving the substantial misfeasance, malfeasance or nonfeasance
in the management of the Company.
5. Nothing in this Agreement shall limit or impair any right
Executive may otherwise have to indemnity and defense by the Company, and,
notwithstanding any contrary provision of this Agreement, (i) the Company shall
indemnify and defend Executive in connection with any action, suit or proceeding
in which Executive may be involved or with which Executive may be threatened by
reason of Executive's being or having been an officer of the Company or by
reason of Executive's being or having been a fiduciary of the Company's employee
benefit plans in the same manner contemplated by (including the payment or
advancement of any reasonable expenses as incurred) and to the fullest extent
permitted by the Declaration of Trust of Northeast Utilities as of the date
hereof, unless later limited in accordance with applicable law, or under
applicable law, (in which case Executive shall notify the Company within five
business days after receiving service of process as to the commencement of the
action, suit or proceeding and give the Company the right to control the defense
of any such action, suit or proceeding, provided that no delay in giving such
notice shall result in a forfeiture of any rights by Executive unless, and then
only to the extent that, the Company is actually prejudiced by such delay), and
(ii) Executive may join the Company in any action, suit or proceeding, or bring
any action, suit or proceeding against the Company, as may be necessary for the
protection or enforcement of such rights of indemnification and defense by the
Company.
6. Except to the extent permitted by paragraph 3, Executive
further agrees and covenants that neither Executive, nor any person,
organization or other entity on Executive's behalf, will file, charge, claim,
xxx or cause or permit to be filed, charged, or claimed, any action for damages,
including injunctive, declaratory, monetary or other relief against the Company,
involving any matter occurring at any time in the past up to the effective date
of this Agreement, or involving any continuing effects of any actions or
practices which may have arisen or occurred prior to the date of this Agreement,
including any charge of retaliation or discrimination under the ADEA, Title VII,
the ADA, the Workers' Compensation Act or federal, state or local laws. In
addition, Executive further agrees and covenants that should Executive, or any
other person, organization or entity on Executive's behalf, file, charge, claim,
xxx or cause or permit to be filed, charged, or claimed, any action for damages,
including injunctive, declaratory, monetary or other relief, despite Executive's
agreement not to do so under this Agreement, or should Executive otherwise fail
to abide, in any material respect, by any of the terms of this Agreement, then
the Company will be relieved of all further obligations owed under the
Employment Agreement and this Agreement, Executive will forfeit all monies paid
to Executive under the Employment Agreement following Executive's termination of
employment and Executive will
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pay all of the costs and expenses of the Company (including reasonable
attorneys' fees) incurred in the defense of any such action or undertaking.
7. In full and complete settlement of any claims that the
Company may have against Executive, other than the fulfillment of Executive's
obligations under this Agreement or under the Employment Agreement, and for and
in consideration of the undertakings of Executive described herein, the Company
does hereby REMISE, RELEASE, AND FOREVER DISCHARGE Executive and Executive's
heirs, executors and administrators (hereinafter all included within the term
"Executive"), of and from any and all manner of actions and causes of actions,
suits, debts, claims and demands whatsoever in law or in equity, which the
Company ever had, now has, or hereafter may have, by reason of any civil (but
specifically not any criminal act) matter, cause or thing whatsoever by reason
of Executive's being or having been an officer of the Company from the beginning
of Executive's employment with the Company to the date of termination of
employment; and particularly, but without limitation of the foregoing general
terms, any claims arising from or relating in any way to actions taken by
Executive by reason of Executive's being or having been an officer of the
Company and Executive's termination from those relationships with the Company.
8. The Company further agrees and covenants that neither it,
nor any person, organization or other entity on its behalf, will file, charge,
claim, xxx or cause or permit to be filed, charged, or claimed, any action for
damages, including injunctive, declaratory, monetary or other relief against
Executive, involving any matter occurring at any time in the past up to the date
of this Agreement, or involving any continuing effects of any actions or
practices which may have arisen or occurred prior to the date of this Agreement,
by reason of Executive's being or having been an officer of the Company, so long
as Executive meets, in all material respects, Executive's obligations under this
Agreement and the Employment Agreement. In addition, the Company further agrees
and covenants that should it, or any other person, organization or entity on its
behalf, file, charge, claim, xxx or cause or permit to be filed, charged, or
claimed, any action for damages, including injunctive, declaratory, monetary or
other relief, despite its agreement not to do so under this Agreement, then it
will pay all of the costs and expenses of Executive (including reasonable
attorneys' fees) incurred in the defense of any such action or undertaking.
9. Executive hereby agrees and acknowledges that under this
Agreement, the Company has agreed to provide Executive with compensation ,
benefits, and covenants that are in addition to that which Executive otherwise
would have been entitled under the Employment Agreement or otherwise in the
absence of this Agreement, and that such additional compensation and covenants
are sufficient to support the covenants and agreements by Executive herein.
10. Executive and the Company, its officers and directors,
will not, disparage the name, business reputation or business practices of the
other. In addition, by signing this Agreement, Executive agrees not to pursue
any internal grievance with the Company.
11. Executive hereby certifies that Executive has read the
terms of this
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Agreement, that Executive has been advised by the Company to consult with an
attorney and that Executive understands its terms and effects. Executive
acknowledges, further, that Executive is executing this Agreement of Executive's
own volition, without any threat, duress or coercion and with a full
understanding of its terms and effects and with the intention, as expressed in
paragraph 3 hereof, of releasing all claims recited herein in exchange for the
consideration described herein, which Executive acknowledges is adequate and
satisfactory to Executive. The Company has made no representations to Executive
concerning the terms or effects of this Agreement other than those contained in
this Agreement.
12. Executive hereby acknowledges that Executive was presented
with this Agreement on December 20, 2000, and that Executive was informed that
Executive had the right to consider this Agreement and the release contained
herein for a period of at least twenty-one (21) days prior to execution.
Executive also understands that Executive has the right to revoke this Agreement
for a period of seven (7) days following execution, by giving written notice to
the Senior Vice President, Secretary, and General Counsel for the Company at 000
Xxxxxx Xxxxxx, Xxxxxx, XX 00000, in which event the provisions of this Agreement
shall be null and void, and the parties shall have the rights, duties,
obligations and remedies afforded by applicable law.
13. This Agreement shall be interpreted and enforced under the
laws of the State of Connecticut.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day and year first above written.
ATTEST: NORTHEAST UTILITIES SERVICE COMPANY
By: /s/ XXXXXX X. XXXXX
--------------------------------- -------------------------------------
Witness Xxxxxx X. Xxxxx
Senior Vice President, Secretary and
General Counsel
/s/ XXXX X. XXXXXXXXX
--------------------------------- -------------------------------------
Witness Xxxx X. XxxXxxxxx
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