EMPLOYMENT AGREEMENT
THIS AGREEMENT ( THE "AGREEMENT") is made as of the 8th day of
November, 2004, between UIL Holdings Corporation, a Connecticut Corporation (the
"Company") and Xxxxxxx Xxxxxx (the "Executive"),
WITNESSETH THAT
WHEREAS, the Company desires to employ the Executive as Vice President
& Controller of the Company, and the Executive desires to be so employed by the
Company;
NOW THEREFORE, in consideration of the foregoing and the respective
covenants and agreements of the parties herein contained, and the services to be
rendered to the Company pursuant hereto, the parties hereby agree as follows:
(1) EMPLOYMENT; TERM
(a) The Company hereby agrees to employ the Executive, and the Executive hereby
agrees to serve the Company, at the pleasure of the Board of Directors of UIL
Holdings Corporation (the " UIL Board"), all upon the terms and conditions set
forth herein.
(b) The term of this Agreement shall be for a period commencing on the date
hereof and ending on the second anniversary of the date hereof, unless this
Agreement is earlier terminated as provided in Section 5 (the "Initial Term").
Unless the Company has provided the Executive with at least ninety (90) days
prior written notice of its decision not to renew this Agreement after the
Initial Term or any subsequent term, this Agreement shall be automatically
renewed for a successive one (1) year term (the Initial Term and any renewal
term being referred to as the "Term"). For purposes of this Agreement, a
non-renewal at the election of the Company at the end of a Term shall not
constitute a termination of this Agreement without cause, but shall be governed
by the provisions of Section 6(d). In no event shall the Company give notice of
a non-renewal from the time that an impending Change in Control (as hereinafter
defined) is announced through the date of the consummation of such Change in
Control.
(2) POSITION AND DUTIES
(a) The Executive shall be employed by the Company as its Vice
President & Controller, or in such other equivalent or higher executive
position as the UIL Board may determine. The Executive shall:
(i) accept such employment and perform and discharge,
faithfully, diligently and to the best of the Executive's abilities,
the duties and obligations of the Executive's office and such other
duties as may from time to time be assigned to the Executive by, or at
the direction of, the UIL Board; and
(ii) devote substantially all of the Executive's working time
and efforts to the business and affairs of the Company.
(b) Prior to a Change in Control, in the event that the
Executive is named by the UIL Board to an executive position higher in
rank or compensation than that applicable at the commencement of the
Initial Term, nothing in this Agreement shall obligate the Company to
continue such Executive in such higher position; and the Company shall
not be deemed in "Breach" of the Agreement (as defined in Section 5(d))
for failure to continue the Executive in such higher position.
(3) PLACE OF PERFORMANCE
In his employment by the Company, the Executive shall be based within a
fifty (50)-mile radius of the current executive offices of the Company in New
Haven, Connecticut.
(4) COMPENSATION
(a) BASE SALARY. During the Initial Term of the Executive's
employment hereunder, the Executive shall receive a base salary ("Base Salary")
at an annual rate of One Hundred Seventy Thousand Dollars ($176,800.00), payable
in accordance with the then customary payroll practices of the Company. The
Executive's performance and Base Salary shall be reviewed by the UIL Board at
least annually, and may be adjusted as a result of any such review.
(b) INCENTIVE COMPENSATION. During the Term of the Executive's
employment hereunder, the Executive shall be eligible to be designated by UIL
Board as a participant in each annual short-term incentive compensation program,
and any long-term incentive program, maintained for management employees of the
Company; provided, however, that entitlement to participation, and continued
participation, in any long-term equity incentive program shall be conditioned
upon the Executive fully complying with any stock ownership and retention
guidelines from time to time established and promulgated by the UIL Board.
For purposes of this Agreement, the Executive's "ACCRUED INCENTIVE COMPENSATION"
shall mean the amount of any annual short-term incentive compensation earned
with respect to the calendar year ended prior to the Date of Termination (as
defined in Section 5) but not yet paid as of the Executive's Date of
Termination.
The Executive's "STUB-PERIOD INCENTIVE COMPENSATION" shall mean the annual
short-term incentive compensation being earned in the year in which the
Executive terminates employment, pro-rated for the year in which he terminates
service, and shall be equal to that short-term annual incentive compensation
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payment to which the Executive would be entitled, if any, under the terms of the
Company's executive incentive compensation plan, calculated as if he had been
employed by the Company on the last day of the year including his Date of
Termination, and had achieved personal goals `at target', but based on actual
performance with respect to the achievement of UIL consolidated financial goals
(referred to as "Company goals"), multiplied by a fraction, the numerator of
which is the number of days which have elapsed in such year through the Date of
Termination and the denominator of which is 365. UIL shall determine in its
discretion the composition of the Executive's scorecard, and what constitutes a
`personal goal' and `Company goal'; provided generally that an Executive's
`personal goals' shall include, for example, his strategic opportunities,
leadership, and balance scorecard goals, other than UIL total financial goals,
and Company goals shall include, for example, UIL consolidated financial goals
based on earnings per share, cash flow, and all other goals not defined as
personal goals. In the event that the `gate', if any, is not achieved with
respect to Company goals, then no Stub-Period Incentive Compensation will be
paid. Any Stub-Period Incentive Compensation payable upon termination of the
Executive shall be paid in accordance with Section 6(e) of this Agreement.
(c) CHANGE IN CONTROL SEVERANCE PLAN. The Executive shall be
designated by the UIL Board as an individual covered by the UIL Holdings
Corporation Change in Control Severance Plan II of the Company (the "UIL CIC
Plan II"), subject to all of the terms and provisions of the UIL CIC Plan as it
may be amended from time to time. For purposes of this Agreement, "Change in
Control" shall have the meaning set forth in the UIL CIC Plan II. Nothing in
this subsection, however, shall entitle the Executive to continued participation
in such Plan should the UIL Board determine otherwise in accordance with the
terms of that Plan.
(d) BUSINESS EXPENSES. During the Term, the Executive shall be
entitled to receive prompt reimbursement for all reasonable employment- related
business expenses incurred by the Executive, in accordance with the policies and
procedures established by the Company Board from time to time for all of the
Company's management employees, provided that the Executive properly accounts
therefor.
(e) BENEFIT PROGRAMS. During the Term of the Executive's
employment hereunder and to the extent he meets the applicable eligibility
requirements, the Executive shall be entitled to participate in and receive
benefits under all of the Company's employee benefit plans, programs and
arrangements for its similarly situated executives on the same terms and
conditions that apply to such executives, including, without limitation, any
plan or program of an affiliated company in which the Company is a participating
employer, but only for so long as the Company remains a participating employer.
Nothing in this Agreement shall require the Company to maintain a particular
benefit plan or program, or preclude the Company from amending or terminating
any such plans, programs or arrangements, including its participation therein,
or eliminating, reducing or otherwise changing any benefit provided thereunder,
so long as such change similarly affects all similarly situated employees of the
Company and is in compliance with applicable law.
(f) VACATIONS AND HOLIDAYS. The Executive shall be entitled to
that number of weeks of paid vacation in each calendar year determined by the
Company Board from time to time to be available to similarly situated Company
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executives, and shall also be entitled to all paid holidays afforded by the
Company to its management employees, all in accordance with applicable Company
policies.
(5) TERMINATION
(a) DEATH OR DISABILITY. The Executive's employment hereunder
shall terminate upon the Executive's death or termination due
to disability (as described in Section 6(a) of this
Agreement).
(b) TERMINATION BY COMPANY FOR CAUSE. The Company may at any
time by written notice to the Executive terminate the
Executive's employment for Cause in accordance with the
following provisions:
(i) TERMINATION FOR CAUSE PRIOR TO A CHANGE IN CONTROL. Prior
to the date of a Change in Control, the Company shall be
deemed to have "Cause" to terminate the Executive's employment
hereunder only upon the Executive's:
(1) failure to comply with any material term of this
Agreement, or to perform and discharge the duties or
obligations of the Executive's office, or such other
duties as may from time to time be assigned to the
Executive by, or at the direction of, the UIL Board,
faithfully, diligently, and competently, unless any
such failure is cured in all material respects to the
reasonable satisfaction of the UIL Board within sixty
(60) days after the Executive receives written notice
of such failure; or
(2) failure to devote substantially all of his
working time and efforts to the business and affairs
of the Company unless any such failure is cured in
all material respects to the reasonable satisfaction
of the UIL Board within sixty (60) days after the
Executive receives written notice of such failure; or
(3) misconduct that is demonstrably injurious to the
interests of the Company or its Affiliates (as that
term is defined in Section 9) unless such misconduct
is rectified in all material respects to the
reasonable satisfaction of the UIL Board within
thirty (30) days after the Executive receives written
notice of such misconduct; or
(4) commission of a serious crime, such as an act of
fraud, misappropriation of funds, embezzlement, or a
crime involving personal dishonesty or moral
turpitude
(ii) TERMINATION FOR CAUSE AFTER A CHANGE IN CONTROL. During
the period that commences on a Change in Control and for
twenty-four (24) months thereafter (the "Change in Control
Protective Period"), and subject to the same notice and cure
provisions specified above, the Company (or its successor or
other entity employing the Executive following such Change in
Control) shall be deemed to have Cause to terminate the
Executive's employment hereunder only upon the Executive's:
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(1) commission of a serious crime, such as an act of
fraud, misappropriation of funds, embezzlement, or a
crime involving personal dishonesty or moral
turpitude; or
(2) misconduct that is demonstrably injurious to the
interests of the Company or its Affiliates; or
(3) willful failure of the Executive to substantially
perform his or her duties (other than by reason of
incapacity due to physical or mental illness or
injury).
(C) TERMINATION BY COMPANY WITHOUT CAUSE. The Company may terminate the
Executive's employment at any time, without cause, upon ninety (90) days prior
written notice to the Executive.
(D) TERMINATION BY EXECUTIVE.
(i) If the Executive is not in default of any of the
Executive's obligations under Sections (2), (9), (10) or (11) hereof, the
Executive may terminate employment hereunder upon at least thirty (30) days'
prior notice, for failure of the Company to observe and perform one or more of
its obligations under Sections (2), (3) and/or (4) hereof, which failure the
Company fails to remedy within such notice period (a "Breach by the Company").
(ii) If the Executive is not in default of any of the
Executive's obligations under Sections (2), (9), (10) or (11) hereof, the
Executive may terminate employment hereunder in the absence of a Breach by the
Company, effective upon at least ninety (90) days prior written notice.
(E) DATE OF TERMINATION. For purposes of this Agreement, the "Date of
Termination" is defined as (i) the Executive's date of death, in the event of
his death; or the date of his termination due to disability, in the case of
disability, or (ii) the date specified in the notice of termination, in the case
of the Executive's termination pursuant to Sections (5)(b), (5)(c), 5(d) hereof.
(6) CONSEQUENCES OF TERMINATION OR NON-RENEWAL.
(a) TERMINATION ON DEATH, DISABILITY OR RETIREMENT; OR BY THE
EXECUTIVE IN THE ABSENCE OF A BREACH BY THE COMPANY UPON ADEQUATE NOTICE. If the
Executive's employment terminates by reason of the Executive's death, or his
total or partial physical or mental disability such that the Executive becomes
entitled to long-term disability benefits under the Company's long-term
disability plan, or if the Executive retires on or after becoming eligible to
retire under the terms of the Company's Pension Plan, or terminates employment
hereunder in the absence of a Breach by the Company upon ninety (90) days prior
written notice, the Company shall pay to the Executive or, in the event of death
or disability, the Executive's personal representative and/or spouse:
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(i) the Executive's Base Salary, and Accrued Incentive
Compensation (as defined in Section 4(b)), earned but unpaid as of the Date of
Termination;
(ii) Stub-Period Incentive Compensation (as defined in Section
4(b)) earned, but unpaid, as of the Date of Termination, but only in the case of
the Executive's death, termination due to disability or retirement (as
hereinbefore defined), and not in case of his voluntary termination other than
on account of such retirement; plus
(iii) any amounts payable pursuant to (4)(d) (unreimbursed
business expenses), (4)(e) (employee benefits due and owing) and (4)(f)
(accrued, but unpaid vacation or holidays) hereof, plus
(iv) any benefits or amounts payable on account of the
Executive's (A) participation in any long-term incentive compensation plan and
equity compensation plan or arrangement, and (B) participation in any deferred
compensation plan in which he was a participant as of his termination of
service, all as determined in accordance with the terms and conditions of such
plans and arrangements.
Pending a determination that the Executive is entitled to long-term disability
benefits, the Executive's short-term disability benefits shall be extended, as
necessary at 50% of Base Salary, if his length of employment with the Company is
of such short duration that his short term disability benefits would otherwise
expire before his entitlement to long-term disability benefits is determined.
Upon payment of these amounts, the Company shall have no further obligation to
the Executive, the Executive's personal representative and/or spouse under this
Agreement or on account of, or arising out of, the termination of the
Executive's employment.
(b) UPON TERMINATION FOR CAUSE; OR BY THE EXECUTIVE ON FEWER
THAN 90 DAYS NOTICE. If the Company terminates the Executive's employment for
Cause, or the Executive terminates employment hereunder in the absence of a
Breach by the Company and upon fewer than ninety (90) days prior written notice,
the Company shall pay to the Executive:
(i) the Executive's Base Salary earned, but unpaid, as of the
Date of Termination; plus
(ii) any amounts payable pursuant to Sections (4)(d), (4)(e)
and 4(f) hereof, and
(iii) any benefits payable under any elective non-qualified
deferred compensation plan in which the Executive had been a participant, other
than any benefit under any supplemental executive retirement plan of the Company
or an Affiliate,
whereupon the Company shall have no further obligation to the Executive under
this Agreement or on account of, or arising out of, the termination of the
Executive's employment.
(c) UPON TERMINATION WITHOUT CAUSE, OR UPON BREACH BY THE
COMPANY, NOT ON ACCOUNT OF A CHANGE IN CONTROL. If the Company terminates the
Executive's employment hereunder without Cause, or if the Executive terminates
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the Executive's employment hereunder on account of a Breach by the Company, and
in either case the termination is not upon a Change in Control or within the
Change in Control Protective Period, the Company shall pay or provide (as
applicable) to the Executive, the following:
(i) the Executive's Base Salary, Accrued Incentive
Compensation and Stub-Period Incentive Compensation earned, but unpaid, as of
the Date of Termination; plus
(ii) any amounts payable pursuant to Sections 4(d), 4(e), and
4(f) hereof; plus
(iii) any benefits or amounts payable on account of the
Executive's (A) participation in any long-term incentive compensation plan and
equity compensation plan or arrangement, and (B) participation in any deferred
compensation plan in which he was a participant as of his termination of
service, all as determined in accordance with the terms and conditions of such
plans and arrangements; plus
(iv) lump sum severance equal to one (1) times the sum of:
(1) the Executive's annual Base Salary rate in effect
immediately prior to the Executive's Date of
Termination, as determined by the UIL Board's most
recent review of salary rates pursuant to Section
4(a); and
(2) the short-term annual incentive compensation
payment to which the Executive would be entitled,
calculated as if he had been employed by the Company
on the last day of the year of his Termination, as
both personal goals and Company goals had been
achieved `at target', without pro-ration for the fact
that the Executive was employed only a portion of
such year. Except for the assumption that such goals
shall have been achieved `at `target', personal and
Company goals shall be defined and determined as set
forth in Section 4(b) of this Agreement.
(v) for the period ending on the first anniversary of the date
of the Executive's Date of Termination, continued participation in the medical
and dental plan(s) in which he was a participant as of his Date of Termination
on the same basis as if he remained an active employee, provided that such
participation is possible under the terms and provisions of such plans and
programs and applicable law. Such period of continued participation shall run
concurrently with, and reduce day- for-day, any obligation that the Company or
any Affiliate would have to provide "COBRA" continuation coverage with respect
to the Executive's termination of employment. If the Executive's participation
in any such plan or program is barred as a result of the Executive's
termination, the Company shall arrange to provide the Executive with benefits
substantially similar on an after-tax basis to those that the Executive would
have been entitled to receive under such plan or program, provided that with
respect to any benefit to be provided on an insured basis, the value of such
coverage shall be based on the present value of the premiums expected to be paid
for such coverage, and with respect to other benefits, such value shall be the
present value of the expected cost to the Company of providing such benefits.
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(d) UPON NON-RENEWAL OF AGREEMENT AT END OF TERM. If the
Executive's employment hereunder is terminated due to non-renewal of this
Agreement, the Company shall pay or provide (as applicable) to the Executive the
same payments and benefits to which the Executive would have been entitled had
he been terminated without cause in accordance with Section 6(c) of this
Agreement.
(e) TIMING OF PAYMENT. Any cash amount that is due and owing
to the Executive upon his termination of service pursuant to Section 6 will be
paid as soon as administratively feasible following the effective date
(including any revocation period) of the Release provided for in Section 6(f);
provided, however, that (i) any Stub-Period Incentive Compensation, and (ii)
that portion of any severance payment that is based on annual short-term
incentive compensation shall be paid following the close of the year in which
the Date of Termination occurs, at the same time that incentive compensation
generally would be payable upon authorization of the UIL Board to all other
employees.
(f) RELEASE. All payments and obligations of the Company under
Section (6) and (7) shall be conditioned upon the execution and delivery by
Executive to the Company of a full and effective release by Executive of any
liability by the Company to Executive in form and substance reasonably
satisfactory to the Company.
(7) CHANGE IN CONTROL
(a) If on, or within twenty-four (24) months following a
Change in Control, the Company (or its successor or other entity employing the
Executive following such Change in Control) either terminates the Executive's
employment hereunder without Cause or fails to renew this Agreement on
substantially identical terms, or if the Executive terminates the Executive's
employment on account of a Constructive Termination (as defined in the UIL CIC
Plan II), then the Executive shall be entitled to the following:
(i) the Executive's Base Salary, Accrued Incentive
Compensation and Stub-Period Incentive Compensation earned prior to the Date of
Termination; plus
(ii) any amounts payable pursuant to Sections 4(d), 4(e), and
4(f) hereof; plus
(iii) any benefits or amounts payable on account of the
Executive's (A) participation in any long-term incentive compensation plan and
equity compensation plan or arrangement, and (B) participation in any deferred
compensation plan in which he was a participant as of his termination of
service, all as determined in accordance with the terms and conditions of such
plans and arrangements; plus
(iv) those payments, and benefits, if any, to which the
Executive is entitled by reason of having been designated a Participant in the
UIL CIC Plan II. The severance payments, pension supplements and other benefit
provisions under such Plan (the "Total UIL CIC Plan Package") shall be
controlling and shall supplant the payments and benefits to which the Executive
would be entitled assuming the Executive were terminated without Cause pursuant
to the terms of this Agreement, including without limitation any severance
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benefits, supplemental retirement benefits, short-term incentive compensation
and other compensation and benefits (other than long-term incentive
compensation) under this Agreement (the "Employment Agreement Termination
Package"); expressly provided, however, that in the event that the Employment
Agreement Termination Package exceeds the value of the Total UIL CIC Plan
Package, then the Executive shall be entitled to select one or the other
Package, but shall not be entitled to both, and shall not be entitled to select
among compensation elements in each Package.
(b) For purposes of this Agreement, Change in Control shall
mean "Change in Control" as defined with respect to the Company employing the
Executive in the UIL CIC Plan II, as amended from time to time.
(c) Payment of benefits under this Section 7 shall be subject
to, and conditioned upon, the provisions of Section 6(e) and (f) hereof.
(8) TAX SAVINGS PROVISION
If any portion of the payments which the Executive has the right to
receive from the Company, or any affiliated entity, hereunder would constitute
"excess parachute payments" (as defined in Section 280G of the Internal Revenue
Code, and not governed by the terms defined in this Agreement) subject to the
excise tax imposed by Section 4999 of the Internal Revenue Code, such excess
parachute payments shall be reduced to the largest amount that will result in no
portion of such excess parachute payments being subject to the excise tax
imposed by Section 4999 of the Internal Revenue Code.
(9) CONFIDENTIAL INFORMATION
The Executive recognizes that the Executive's employment by the Company
is one of highest trust and confidence by reason of his access to certain trade
secrets, confidential business practices, and proprietary information concerning
the Company or any person or entity that directly, or indirectly through one or
more intermediaries, controls or is controlled by, or is under common control
with, the Company (an "Affiliate"), including, without limitation, the Company's
methods of doing business, marketing and strategic business plans, employees'
compensation and contract terms, customer lists and customer characteristics
(collectively referred to as "Proprietary Information"). The Executive agrees
and covenants to exercise utmost diligence to protect and safeguard the trade
secrets, confidential business practices and Proprietary Information concerning
the Company and any Affiliate. The Executive further agrees and covenants that,
except with the prior written consent of the Company, he will not, either during
the Term hereof or thereafter, directly or indirectly, use for his own benefit
or for the benefit of any other person or organization, or disclose, disseminate
or distribute to any other person or organization, any of the Proprietary
Information (whether or not acquired, learned, obtained or developed by the
Executive alone or in conjunction with another), unless and until such
Proprietary Information has become a matter of public knowledge through no
action or fault of the Executive or unless otherwise required by court order to
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comply with legal process. All memoranda, notes, records, drawings, documents or
other writings whatsoever made, compiled, acquired or received by the Executive
during the Term hereof arising out of, in connection with, or related to any
activity or business of the Company are and shall continue to be the sole and
exclusive property of the Company, and shall, together with all copies thereof,
be returned and delivered to the Company by the Executive immediately, when he
ceases to be employed by the Company, or at any other time upon the Company's
demand.
(10) NON-COMPETITION
The Executive agrees and covenants that, during the Term of this Agreement and
for a period of twelve (12) months following the month during which the
Executive ceases to be employed by the Company and its Affiliates (the "time in
question"), the Executive will not, in any capacity, directly or indirectly,
whether as a consultant, employee, officer, director, partner, member,
principal, shareholder, or otherwise:
(a) become employed by, enter into a consulting arrangement
with, or otherwise perform services for, manage, acquire an ownership in, or
participate in the management or ownership of, a Competitor; or
(b) directly or indirectly divert or attempt to divert from
the Company or any Affiliate any business in which the Company or any Affiliate
has been actively engaged during the Term hereof, or in any way interfere with
the relationships that the Company or any Affiliate has with its sources of
supply or customers; or
(c) directly or indirectly interfere or attempt to interfere
with the relationship between the Company or any Affiliate and any of such
entity's employees;
unless the Company has granted prior written approval which may be withheld for
any reason.
For purposes of this Section "Competitor" means any person or entity (a
`business') that sells goods or services that are directly competitive with
those goods or services sold or provided by the Company or any Affiliate, in a
geographic area in which the Company or Affiliate is doing business and such
Competitor is also doing business at the time in question, and such goods or
services were being sold or provided at the Date of Termination, and, for the
Company's most recently completed fiscal year ending with, or immediately prior
to, the Date of Termination, contributed more than 10% of the revenue of the
Company and its Affiliates. Notwithstanding anything to the contrary in this
Section, a business shall not deemed to be a Competitor with the Company if the
Executive is employed by, or otherwise associated with such business, and that
business has a unit that is in competition with the Company or an Affiliate, but
the Executive does not have direct or indirect responsibilities for the services
or goods involved in the competition.
Nothing in this Section shall be construed to prohibit the ownership by the
Executive of less than five percent (5%) of any class of securities of any
entity that is engaged in any of the foregoing businesses having a class of
securities registered pursuant to the Securities Exchange Act of 1934 (the
"Exchange Act"), provided that such ownership represents a passive investment
and that neither the Executive, nor any group of persons including the
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Executive, in any way, directly or indirectly, manages or exercises control of
such entity, guarantees any of its financial obligations, or otherwise takes any
part in its business, other than through exercising the Executive's rights as a
shareholder.
For purposes of this Section "Affiliate" means any entity that directly or
indirectly controls, is controlled by, or is under common control with the
Company.
As used in Sections 9-11, the term the "Company" shall mean UIL Holdings
Corporation, and any successor to, or acquirer of, the business or assets of the
Company.
(11) DISCLOSURE AND ASSIGNMENT OF INVENTIONS AND DISCOVERIES.
(a) DISCLOSURE OF INVENTIONS. The Executive agrees to make prompt and
complete disclosure to the Company of all inventions and discoveries made or
conceived by him, alone or with others, while this Agreement is in effect, or
within a reasonable time thereafter, which arise out of or relate to the
services rendered pursuant to this Agreement. The Executive also agrees to keep
necessary records, including notes, sketches, drawings, models and data
supporting all such inventions and discoveries made by him, alone or with
others, during the course of performing the services pursuant to this Agreement,
and the Executive agrees to furnish the Company, upon request, all such records.
(b) ASSIGNMENT OF INVENTIONS AND DISCOVERIES. The Executive also
agrees that he will assign to the Company all inventions and discoveries made
by him which arise out of and pertain to the services rendered pursuant to
this Agreement, together with all domestic and foreign patents as may be
obtained on these inventions and discoveries. The Executive further agrees
that, upon request of the Company, he will execute all necessary papers and
cooperate in the fullest degree with the Company in securing, maintaining and
enforcing any such patents which arise out of his services under this
Agreement. It is understood, however, that these obligations undertaken by
Executive will be at no expense to him.
(12) MISCELLANEOUS.
(a) EQUITABLE REMEDIES. The Executive acknowledges
that the restrictions provided for in Sections (9) through (11) are reasonable
and necessary in order to protect the legitimate interests of the Company and
its Affiliates, and that any violation thereof would result in serious damage
and irreparable injury to the Company and its Affiliates. Further, the
Executive acknowledges that the services to be rendered by him are of such
unique and extraordinary nature, and the resulting injury to the Company from
a breach of Sections (9) through (11), inclusive, by the Executive would be
of such a nature, that an action at law for the collection of damages would
not provide adequate relief to the Company for the enforcement of its rights
in the event of an actual or threatened violation by the Executive of his
commitments and obligations under Sections (9) through (11). The Executive
agrees that upon the actual or threatened breach or violation of any of the
commitments under Section (9) through (11), the Company shall be entitled to
both preliminary and permanent injunctive relief, in any action or proceeding
brought in an appropriate court having jurisdiction over the Executive, to
restrain him from committing any violation of any such commitments and
obligations.
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(b) EFFECT OF BREACH. All payments and other benefits payable
but not yet distributed to Executive under Sections (6) or (7)) shall be
forfeited and discontinued in the event that the Executive violates Sections (9)
through (11) of this Agreement, or willfully engages in conduct which is
materially injurious to the Company, monetarily or otherwise, all as determined
in the sole discretion of the Company.
(c) SUCCESSORS; BINDING AGREEMENT; ASSIGNMENT.
(i) The Company will require the acquirer of all or
substantially all of the business or assets of the Company (whether directly or
indirectly, by purchase of stock or assets, merger, consolidation or otherwise),
by agreement in form and substance reasonably 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. If the Company fails to obtain such agreement prior
to the effective date of any such succession, the Executive may terminate his or
her employment with in thirty (30) days of such succession and treat such
termination as a Breach by the Company and termination without cause on account
of a Change in Control entitling the Executive to payments and benefits under
Section 7 of this Agreement. For purposes of implementing the foregoing, the
date on which any such succession becomes effective shall be deemed the Date of
Termination.
(ii) This Agreement, and the Executive's rights and
obligations hereunder, may not be assigned by the Executive. Any attempted
assignment of this Agreement by the Executive shall be void and of no force or
effect. This Agreement and all rights of the Executive hereunder 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.
As used in this Section, the term the "Company" shall include The United
Illuminating Company, UIL Holdings Corporation, and any successor to, or
acquirer of, the business or assets of the Company that executes and delivers
the agreement provided for in this Section (12)(c) or which otherwise becomes
bound by all the terms and provisions of this Agreement by operation of law.
(d) NOTICES. For the purpose of this Agreement, notices and
all other communications to either party hereunder 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 certified or registered mail, return receipt
requested, postage prepaid, addressed, in the case of the Company, to the
Secretary of the Company at 000 Xxxxxx Xxxxxx, Xxx Xxxxx, Xxxxxxxxxxx 00000, or,
in the case of the Executive, to the Executive at his residence, or to such
other address as either party shall designate by giving written notice of such
change to the other party.
(E) WAIVER; AMENDMENT. No provision of this Agreement may be
modified, waived or discharged unless such waiver, modification or discharge is
approved by the UIL Board and agreed to in a writing signed by the Executive and
the Company. 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 any
similar or dissimilar provisions or conditions at the same or at any prior or
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subsequent time. No agreements or representations, oral or otherwise, express or
implied, with respect to the subject matter hereof have been made by either
party that are not set forth expressly in this Agreement.
(F) GOVERNING LAW; SEVERABILITY. The validity, interpretation,
construction and performance of this Agreement shall be governed by the laws of
the State of Connecticut. The validity 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. In the event one or more of the provisions of this Agreement should, for
any reason, be held to be invalid, illegal or unenforceable in any respect, the
parties agree that such provisions shall be legally enforceable to the extent
permitted by applicable law, and that any court of competent jurisdiction shall
so enforce such provision, or shall have the authority hereunder to modify it to
make it enforceable to the greatest extent permitted by law.
(G) NO CONFLICT. The Executive hereby represents and warrants
to the Company that neither the execution nor the delivery of this Agreement,
nor the employment of the Executive by the Company will result in the breach of
any agreement to which the Executive is a party.
(H) SURVIVAL. The provisions of this Agreement shall not
survive the termination of this Agreement or of the Executive's employment
hereunder, except that the provisions of Sections (6) through (12) hereof shall
survive such termination and shall be binding upon the Executive, the
Executive's personal representative and/or spouse, the Company, and the
Company's successors and assigns.
(I) COUNTERPARTS; FACSIMILE EXECUTION. This Agreement may be
executed in two or more counterparts, each of which shall be deemed an original
but all of which together shall constitute one and the same instrument.
Facsimile execution and delivery of this Agreement is legal, valid and binding
execution and delivery for all purposes.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
Date: November 8, 2004
UIL HOLDINGS CORPORATION
Attest:
/s/ Xxxxx X. Xxxxx By: /s/ Xxxxxxxxx X. Xxxxxxx
------------------ ------------------------
Xxxxx X. Xxxxx Xxxxxxxxx X. Xxxxxxx
Vice President Investor Relations Its Chairman, President and Chief
Corporate Secretary & Assistant Executive Officer
Treasurer
November 8, 2004 /s/ Xxxxxxx Xxxxxx
---------------- ------------------------
Date XXXXXXX XXXXXX
