CHANGE IN CONTROL TERMINATION AGREEMENT
This Change in Control Termination Agreement (the "Agreement") is entered
into on April 7, 1999, between Middlesex Water Company, a New Jersey
corporation, with its principal place of business located at 1500 Ronson Road,
P.O. Box 1500, Iselin, New Jersey 08830-0452, (the "Company"), and J. Xxxxxxx
Xxxxxxxx, residing at 00 Xxxxxx Xxxx Xxxxx, Xxxxx Xxxx, Xxx Xxxxxx 00000.
RECITALS
A. The Company considers it essential to the best interests of its
stockholders to xxxxxx the continuous employment of key management personnel. In
this connection, the Board of Directors of the Company (the "Board") recognizes
that, as is the case with many publicly held Companies, the possibility of a
Change In Control may exist. This possibility, and the uncertainty and questions
that it may raise among management, may result in the departure or distraction
of management personnel to the detriment of the Company and its stockholders.
B. The Board has determined that appropriate steps should be taken to
reinforce and encourage the continued attention and dedication of members of the
Company's management, including yourself, to the assigned duties without
distraction in the face of potentially disturbing circumstances arising from the
possibility of a Change In Control of the Company.
C. To induce you to remain in the employ of the Company, and in
consideration of your agreement set forth below, the Company agrees that you
shall receive the severance benefits set forth in this Agreement in the event
your employment with the Company is terminated or "constructively terminated" as
defined herein in connection with a "Change In Control of the Company" (as
defined in Section 2 below) under the circumstances described below. This
Agreement is meant to supersede any other specific written agreements that may
have been entered into between yourself and the Company concerning termination
of employment.
Therefore, in consideration of your continued employment and the
parties' agreement to be bound by the terms contained in this Agreement, the
parties agree as follows:
1. TERM OF AGREEMENT. This Agreement shall commence as of April 8, 1999 and
shall continue in effect through December 31, 2001. However, commencing on
December 31, 2001, and each December 31 afterwards, the term of this Agreement
shall automatically be extended for 1 additional year unless, no later than the
preceding November 1, the Company shall have given notice that it does not wish
to extend this Agreement. Notwithstanding the foregoing, if a Change In Control
of the Company shall be proposed to occur or have occurred during the original
or any extended term of this Agreement, this Agreement shall continue in effect
for a period of three years beyond the month in which the Change In Control
occurs. Notwithstanding the foregoing, and provided no Change of Control shall
have occurred, this Agreement shall automatically terminate on the earlier to
occur of (i) your termination of employment with the Company, or (ii) the
Company's furnishing you with notice of termination, irrespective of the
effective date of the termination.
2. CHANGE IN CONTROL. No benefits shall be payable under this Agreement
unless there shall have been a Change In Control of the Company, as set forth
below. For purposes of this Agreement, a "Change In Control" of the Company
shall be deemed to occur if any party or group acquires beneficial ownership of
20 percent or more of the voting shares of the Company; or if shareholder
approval is required for a transaction involving the acquisition of the Company
through the purchase or exchange of the stock or assets of the Company by merger
or otherwise; or if one-third or more of the Board elected in a 12-month period
or less are so elected without the approval of a majority of the Board as
constituted at the beginning of such period; or a liquidation or dissolution of
Company.
3. TERMINATION FOLLOWING CHANGE IN CONTROL. If any of the events described
in Section 2 above constituting a Change In Control of the Company shall have
occurred, you shall be entitled to the benefits provided in subsection 4.3 below
on the subsequent termination or "Constructive Termination" of your employment
during the term of this Agreement, unless the termination is (A) because of your
death, Disability or Retirement, (B) by the Company for Cause, or (C) by you
other than for Good Reason.
3.1 DISABILITY; RETIREMENT. If, as a result of your incapacity due to
physical or mental illness, you shall have been absent from the full-time
performance of your duties with the Company for 6 consecutive months, and within
30 days after written notice of termination is given you shall not have returned
to the full-time performance of your duties, your employment may be terminated
for "Disability." Termination by the Company or you of your employment based on
"Retirement" shall mean termination in accordance with the Company's retirement
policy, including early retirement, generally applicable to its salaried
employees or in accordance with any retirement arrangement established with your
consent with respect to you.
3.2 CAUSE. Termination by the Company of your employment for "Cause"
shall mean termination on:
3.2.1 the willful and continued failure by you to
substantially perform your duties with the Company
as such employment was performed by you prior to
the Change of Control (other than any such failure
resulting from your incapacity due to physical or
mental illness or any such actual or anticipated
failure after the issuance by you of a Notice of
Termination for Good Reason as defined in
Subsections 3.4 and 3.3, respectively) after a
written demand for substantial performance is
delivered to you by the Board, which demand
specifically identifies the manner in which the
Board believes that you have not substantially
performed your duties; or
3.2.2 the willful act by you in conduct that is
demonstrably and materially injurious to the
Company, and which the Board deems to cause or
will cause substantial economic damage to the
Company or injury to the business reputation of
the Company, monetarily or otherwise. For purposes
of this Subsection, no act, or failure to act, on
your part shall be deemed "willful" unless done,
or omitted to be done, by you not in good faith
and without a reasonable belief that your action
or omission was in the best interest of the
Company. Notwithstanding the foregoing, you shall
not be deemed to have been terminated for Cause
unless and until there shall have been delivered
to you a copy of a resolution duly adopted by the
affirmative vote of not less than three-quarters
of the entire membership of the Board at a meeting
of the Board called and held for such purpose
(after reasonable notice to you and an opportunity
for you, together with your counsel, to be heard
before the Board), finding that in the good faith
opinion of the Board you were guilty of conduct
set forth above in clauses 3.2.1 or 3.2.2 of the
first sentence of this Subsection and specifying
the particulars in detail.
3.3 GOOD REASON. You shall be entitled to terminate your employment
for Good Reason. For purposes of this Agreement, "Good Reason" shall mean,
without your express written ----------- consent, the occurrence in connection
with a Change In Control of the Company of any of the following circumstances
unless, in the case of paragraphs 3.3.1, 3.3.5, 3.3.6, 3.3.7, or 3.3.8, the
circumstances are fully corrected prior to the Date of Termination specified in
the Notice of Termination, as defined in Subsections 3.5 and 3.4, respectively,
given in respect of them. If you have Good Reason for your termination you shall
be considered to have been "Constructively Terminated" by the Company:
3.3.1 the assignment to you of any duties inconsistent
with your status and position (i) prior to the
Change In Control where such change is a direct
result of any pending Change in Control; or (ii)
as such status exists immediately prior to the
Change In Control of the Company, or (iii) a
substantial adverse alteration in the nature or
status of your responsibilities from those in
effect immediately prior to the Change In Control
of the Company whichever is applicable;
3.3.2 a reduction by the Company in your annual base
salary as in effect on this date or as the same
may be increased from time to time irrespective of
future Company policies including any
across-the-board salary reductions similarly
affecting all key employees of the Company;
3.3.3 your relocation, without your consent, to a
location not within twenty five (25) miles of your
present office or job location, except for
required travel on the Company's business to an
extent substantially consistent with your present
business travel obligations;
3.3.4 the failure by the Company, without your consent,
to pay to you any part of your current
compensation, or to pay to you any part of an
installment of deferred compensation under any
deferred compensation program of the Company,
within fourteen (14) days of the date the
compensation is due;
3.3.5 the failure by the Company to continue in effect
any bonus to which you were entitled, or any
compensation plan in which you participate (i)
prior to the Change in Control where such change
is a direct result of any pending Change In
Control; or (ii) immediately prior to the Change
In Control of the Company that is material to your
total compensation, including but not limited to
the Company's Restricted Stock Plan, 401(k) Plan,
and Benefit Plans, or any substitute plans adopted
prior to the Change In Control of the Company,
unless an equitable arrangement (embodied in an
ongoing substitute or alternative plan) has been
made with respect to the plan, or the failure by
the Company to continue your participation in it
(or in such substitute or alternative plan) on a
basis not materially less favorable, both in terms
of the amount of benefits provided and the level
of your participation relative to other
participants, as existed at the time of the Change
In Control;
3.3.6 the failure by the Company to continue to provide
you with (i) benefits substantially similar to
those enjoyed by you under any of the Company's
life insurance, medical, health and accident, or
disability plans in which you were participating
at the time of the Change In Control of the
Company was in effect for the employees of the
Company generally at the time of the Change In
Control, (ii) the failure to continue to provide
you with a Company automobile or allowance in lieu
of it at the time of the Change In Control of the
Company, (iii) the taking of any action by the
Company that would directly or indirectly
materially reduce any of such benefits or deprive
you of any material fringe benefit enjoyed by you
at the time of the Change In Control of the
Company, or (iv) the failure by the Company to
provide you with the number of paid vacation days
to which you are entitled on the basis of years of
service with the Company in accordance with the
Company's normal vacation policy in effect at the
time of the Change In Control of the Company;
3.3.7 the failure of the Company to obtain a
satisfactory agreement from any successor to
assume and agree to perform this Agreement, as
contemplated in Section 5 of this Agreement; or
3.3.8 any purported termination of your employment that
is not effected pursuant to a Notice of
Termination satisfying the requirements of
Subsection 3.4 below (and, if applicable, the
requirements of Subsection 3.2 above); for
purposes of this Agreement, no such purported
termination shall be effective.
Your rights to terminate your employment pursuant to this
Subsection shall not be affected by your incapacity due to physical or mental
illness. Your continued employment shall not constitute consent to, or a waiver
of rights with respect to, any circumstance constituting Good Reason under this
Agreement. In the event you deliver Notice of Termination based on circumstances
set forth in Paragraphs 3.3.1, 3.3.5, 3.3.6, 3.3.7, or 3.3.8 above, which are
fully corrected prior to the Date of Termination set forth in your Notice of
Termination, the Notice of Termination shall be deemed withdrawn and of no
further force or effect.
3.4 NOTICE OF TERMINATION. Any purported termination of your
employment by the Company or by you shall be communicated by written Notice of
Termination to the other party to --------------------- this Agreement in
accordance with Section 6 of this Agreement. For purposes of this Agreement, a
"Notice of Termination" shall mean a notice that shall indicate the specific
termination provision in this Agreement relied on, and shall set forth in
reasonable detail the facts and circumstances claimed to provide a basis for
termination of your employment under the provision so indicated.
3.5 DATE OF TERMINATION, ETC. "Date of Termination" shall mean (A) if
your employment is terminated for Disability, 30 days after Notice of
Termination is given (provided that you shall not have returned to the full-time
performance of your duties during such 30-day period), and (B) if your
employment is terminated pursuant to Subsection 3.2 or 3.3 above or for any
other reason (other than Disability), the date specified in the Notice of
Termination (which, in the case of a termination pursuant to Subsection 3.2
above shall not be less than 30 days, and in the case of a termination pursuant
to Subsection 3.3 above shall not be less than 15 nor more than 60 days,
respectively, from the date the Notice of Termination is given). However, if
within 15 days after any Notice of Termination is given, or, if later, prior to
the Date of Termination (as determined without regard to this provision), the
party receiving the Notice of Termination notifies the other party that a
dispute exists concerning the termination, then the Date of Termination shall be
the date on which the dispute is finally determined, either by mutual written
agreement of the parties, by a binding arbitration award, or by a final
judgment, order, or decree of a court of competent jurisdiction (which is not
appealable or with respect to which the time for appeal has expired and no
appeal has been perfected). The Date of Termination shall be extended by a
notice of dispute only if the notice is given in good faith and the party giving
the notice pursues the resolution of the dispute with reasonable diligence.
Notwithstanding the pendency of any such dispute, the Company will continue to
pay you your full compensation in effect when the notice giving rise to the
dispute was given (including, but not limited to, base salary) and continue you
as a participant in all compensation, benefit, and insurance plans in which you
were participating when the notice giving rise to the dispute was given, until
the dispute is finally resolved in accordance with this Subsection. Amounts paid
under this Subsection are in addition to all other amounts due under this
Agreement and shall not be offset against or reduce any other amounts due under
this Agreement except to the extent otherwise provided in subsection 4.4.
4. COMPENSATION ON TERMINATION OR DURING DISABILITY. Following a
Change In Control of the Company, as defined by Section 2, on termination of
your employment or during a period of disability you shall be entitled to the
following benefits:
4.1 During any period that you fail to perform your full-time duties
with the Company as a result of incapacity due to physical or mental illness,
you shall continue to receive your base salary at the rate in effect at the
commencement of any such period, together with all amounts payable to you under
any compensation plan of the Company during the period, until this Agreement is
terminated pursuant to section 3.1 above. Thereafter, or in the event your
employment shall be terminated by the Company or by you for Retirement, or by
reason of your death, your benefits shall be determined under the Company's
retirement, insurance, and other compensation programs then in effect in
accordance with the terms of those programs.
4.2 If your employment shall be terminated by the Company for Cause or
by you other than for Good Reason, Disability, death, or Retirement, the Company
shall pay you your full base salary through the Date of Termination at the rate
in effect at the time Notice of Termination is given, plus all other amounts and
benefits to which you are entitled under any compensation plan of the Company at
the time the payments are due. The Company shall have no obligations to you
under this Agreement.
4.3 If your employment by the Company shall be terminated (a) by the
Company other than for Cause, Retirement or Disability, or (b) by you for Good
Reason, then you shall be entitled to the benefits provided below:
4.3.1 The Company shall pay you your full salary through
the Date of Termination at the rate in effect at
the time notice of Termination is given, plus all
other amounts and benefits to which you are
entitled under any compensation plan of the
Company, at the time the payments are due, except
as otherwise provided below.
4.3.2 In lieu of any further salary payments to you for
periods subsequent to the Date of Termination, the
Company shall pay to you, as severance pay the
following: (i) a lump sum severance payment equal
to three (3) times the average of your
Compensation for the five (5) years prior to the
occurrence of the circumstance giving rise to the
notice of Termination, plus (ii) the amounts in
the forms set forth in paragraphs 4.3.3, 4.3.4 and
4.3.5 (the "Severance Payments"). In addition to
the Severance Payments, the Company shall pay to
you an additional amount equal to the amount of
the Excise Tax, if any, that is due or determined
to be due under Section 4999 of the Internal
Revenue Code of 1986, as amended, resulting from
the Severance Payments or any other payments under
this Agreement or any other agreement between you
and the Company and an amount sufficient to pay
the taxes on any such Excise Taxes (the
"Gross-up"). For purposes of this Agreement,
"Compensation" shall mean the aggregate
remuneration paid by the Company to you during a
calendar year, including bonuses, awards under the
Company's Restricted Stock Plan, benefits under
employee benefit plans, automobile allowances or
any fees paid to you as remuneration for serving
as a Director of the Company.
4.3.3 The Company shall continue coverage for you and
your dependents under any health or welfare
benefit plan under which you and YOUR DEPENDENTS
WERE PARTICIPATING PRIOR TO THE CHANGE IN CONTROL
FOR A PERIOD ENDING ON THE EARLIER to occur of (i)
the date you become covered by a new employer's
health and welfare benefit plan, (ii) the date you
become covered by Medicare, or (iii) the date
which is thirty-six (36) months from the date of
Termination. The coverage for your dependents
shall end earlier than (i), (ii) or (iii) if
required by the health or welfare benefit plan due
to age eligibility.
4.3.4 The Company shall pay to you any deferred
compensation, including, but not limited to
deferred bonuses, allocated or credited to you or
your account as of the Date of Termination.
4.3.5 Outstanding stock options or Restricted Stock
grants, if any, granted to you under the Company's
Stock Plans which are not vested on Termination
shall immediately vest.
4.3.6 Where you shall prevail in any such action, the
Company shall also pay to you all legal and
accounting fees and expenses incurred by you as a
result of the termination (including all such fees
and expenses incurred by you as a result of the
termination (including all such fees and expenses,
if any, incurred in contesting or disputing any
termination or in seeking to obtain or enforce any
right or benefit provided by this Agreement or in
connection with any tax audit or proceeding to the
extent attributable to the application of Code
Section 4999 to any payment or benefit provided
under this Agreement) or any other agreement with
the Company.
4.3.7 The amount of Severance Payments and any Gross-up
due to you under this or any other relevant
agreement with the Company shall be determined by
a third party agreed to by you and the Company. If
you cannot agree on a third party, then both third
parties shall determine the amounts due under this
Agreement. If the third parties do not agree on
the amount to be paid to you, then either party
may submit the calculation of the amounts which
are in dispute to Arbitration in accordance with
this Agreement. The payments provided for in
Paragraphs 4.3.2, 4.3.4 and 4.3.5 above, shall be
made no later than the THIRTIETH (30TH) day
following the Date of Termination. However, if the
amounts of the payments cannot be finally
determined on or before that day, the Company
shall pay to you on that day an estimate, as
determined in good faith by the Company, of the
minimum amount of such payments and shall pay the
remainder of those payments (together with
interest at the rate provided in Section
1274(b)(2)(B) of the Code) as soon as the amount
can be determined but in no event later than the
30th day after the Date of Termination. In the
event that the amount of the estimate payments
exceeds the amount subsequently determined to have
been due, the excess shall constitute a loan by
the Company to you payable on the 30th day after
demand by the Company (together with interest at
the rate provided in Section 1274(b)(2)(B) of the
Code).
4.4 You shall not be required to mitigate the amount of any payment
provided for in this Section 4 by seeking other employment or otherwise, nor
shall the amount of any payment or benefit provided for in this Section 4 be
reduced by any compensation earned by you as the result of employment by another
employer, by retirement benefits, by offset against any amount claimed to be
owed by you to the Company, or otherwise except as specifically provided in this
Section 4.
4.5 In addition to all other amounts payable to you under this Section 4,
you shall be entitled to receive all qualified benefits payable to you under the
Company's 401(k) Plan, Defined Benefit Plan and any other plan or agreement
relating to retirement benefits.
5. SUCCESSORS; BINDING AGREEMENT.
5.1 The Company will require any successor (whether direct or
indirect, by purchase, merger, consolidation, or otherwise) to all or
substantially all of the business and/or assets of the Company 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. Failure of the Company to obtain the assumption and agreement
prior to the effectiveness of any succession shall be a breach of this agreement
and shall entitle you to compensation from the Company in the same amount and on
the same terms as you would have been entitled to under this Agreement if you
had terminated your employment for Good Reason following a Change In Control of
the Company, except that for purposes of implementing the foregoing, the date on
which any such succession becomes effective shall be deemed the Date of
Termination.
5.2 This Agreement shall inure to the benefit of and be enforceable by
your personal or legal representatives, executors, administrators, heirs,
distributees, and legatees. If you should die while any amount would still be
payable to you if you had continued to live, all such amounts, unless otherwise
provided in this Agreement, shall be paid in accordance with the terms of this
Agreement to your legatee or other designee or, if there is no such designee, to
your estate.
6. NOTICE. For the purpose of this Agreement, all notices and other
communications provided for in the Agreement shall be in writing and shall be
deemed to have been duly given when delivered or mailed by United States
registered or certified mail, return receipt requested, postage prepaid,
addressed to the respective addresses set forth on the first page of this
Agreement, provided that all notices to the Company shall be directed to the
attention of the Board with a copy to the Secretary of the Company, or to such
other address as either party may have furnished to the other in writing in
accordance this Agreement, except that notice of a change of address shall be
effective only on receipt.
7. MISCELLANEOUS.
7.1 No provision of this Agreement may be modified, waived, or
discharged unless the waiver, modification, or discharge is agreed to in writing
and signed by you and such officer as may be specifically designated by the
Board.
7.2 No waiver by either party to this Agreement at any time of any
breach by the other party of, or compliance with, any condition or provision of
this Agreement to be performed by such other party shall be deemed a waiver of
similar or dissimilar provisions or conditions at the same or at any prior or
subsequent time.
7.3 No agreements or representations, oral or otherwise, express or
implied, with respect to the subject matter of this Agreement have been made by
either party that are not expressly set forth in this Agreement.
7.4 Nothing in this Agreement is intended to reduce any benefits
payable to you under any other agreement you may have with the Company or in any
Company plan in which you may participate.
7.5 The validity, interpretation, construction, and performance of
this Agreement shall be governed by the law of New Jersey without reference to
its conflict of laws principals.
7.6 All references to sections of the Exchange Act or the Code shall
be deemed also to refer to any successor provisions to such sections. Any
payments provided for shall be paid net of any applicable withholding or
deduction required under federal, state or local law.
7.7 The obligations of the Company under Section 4 shall survive the
expiration of the term of this Agreement.
8. VALIDITY. The validity or enforceability of any provision of this
Agreement shall not affect the validity or unenforceability of any other
provision of this Agreement, which shall remain in full force and effect.
9. COUNTERPARTS. This Agreement may be executed in several counterparts,
each of which shall be deemed to be an original but all of which together will
constitute one and the same instrument.
10. ARBITRATION. Any dispute or controversy arising under or in connection
with this Agreement shall be settled exclusively by arbitration in New Jersey in
accordance with the rules of the American Arbitration Association then in
effect. Judgment may be entered on the arbitrator's award in any court having
jurisdiction. However, you shall be entitled to seek specific performance of
your right to be paid until the Date of Termination during the pendency of any
dispute or controversy arising under or in connection this Agreement.
11. ENTIRE AGREEMENT. This Agreement sets forth the entire understanding of
the parties with respect to its subject matter and supersedes all prior written
or oral agreements or understandings with respect to the subject matter.
In witness whereof, the parties have executed this agreement as of the day
and year first above written.
MIDDLESEX WATER COMPANY
By:/s/ Xxxxxx X. Xxxxxxxx
-------------------------------------
Xxxxxx X. Xxxxxxxx
Vice President and General Counsel
ATTEST:
/s/ Xxxxxx X. Xxxxxxxx
----------------------
Xxxxxx X. Xxxxxxxx
Vice President
Secretary and Treasurer
/s/ J. Xxxxxxx Xxxxxxxx
-------------------------------
J. Xxxxxxx Xxxxxxxx
Exhibit 10.15(b)
CHANGE IN CONTROL TERMINATION AGREEMENT
This Change in Control Termination Agreement (the "Agreement") is entered
into on April 7, 1999, between Middlesex Water Company, a New Jersey
corporation, with its principal place of business located at 1500 Ronson Road,
P.O. Box 1500, Iselin, New Jersey 08830-0452, (the "Company"), and Xxxxxx X.
Xxxxx, residing at 00 Xxxxxx Xxxxx, Xxxxxx, Xxx Xxxxxx 00000.
RECITALS
A. The Company considers it essential to the best interests of its
stockholders to xxxxxx the continuous employment of key management personnel. In
this connection, the Board of Directors of the Company (the "Board") recognizes
that, as is the case with many publicly held Companies, the possibility of a
Change In Control may exist. This possibility, and the uncertainty and questions
that it may raise among management, may result in the departure or distraction
of management personnel to the detriment of the Company and its stockholders.
B. The Board has determined that appropriate steps should be taken to
reinforce and encourage the continued attention and dedication of members of the
Company's management, including yourself, to the assigned duties without
distraction in the face of potentially disturbing circumstances arising from the
possibility of a Change In Control of the Company.
C. To induce you to remain in the employ of the Company, and in
consideration of your agreement set forth below, the Company agrees that you
shall receive the severance benefits set forth in this Agreement in the event
your employment with the Company is terminated or "constructively terminated" as
defined herein in connection with a "Change In Control of the Company" (as
defined in Section 2 below) under the circumstances described below. This
Agreement is meant to supersede any other specific written agreements that may
have been entered into between yourself and the Company concerning termination
of employment.
Therefore, in consideration of your continued employment and the parties'
agreement to be bound by the terms contained in this Agreement, the parties
agree as follows:
1. TERM OF AGREEMENT. This Agreement shall commence as of April 8, 1999 and
shall continue in effect through December 31, 2001. However, commencing on
December 31, 2001, and each December 31 afterwards, the term of this Agreement
shall automatically be extended for 1 additional year unless, no later than the
preceding November 1, the Company shall have given notice that it does not wish
to extend this Agreement. Notwithstanding the foregoing, if a Change In Control
of the Company shall be proposed to occur or have occurred during the original
or any extended term of this Agreement, this Agreement shall continue in effect
for a period of three years beyond the month in which the Change In Control
occurs. Notwithstanding the foregoing, and provided no Change of Control shall
have occurred, this Agreement shall automatically terminate on the earlier to
occur of (i) your termination of employment with the Company, or (ii) the
Company's furnishing you with notice of termination, irrespective of the
effective date of the termination.
2. CHANGE IN CONTROL. No benefits shall be payable under this Agreement
unless there shall have been a Change In Control of the Company, as set forth
below. For purposes of this Agreement, a "Change In Control" of the Company
shall be deemed to occur if any party or group acquires beneficial ownership of
20 percent or more of the voting shares of the Company; or if shareholder
approval is required for a transaction involving the acquisition of the Company
through the purchase or exchange of the stock or assets of the Company by merger
or otherwise; or if one-third or more of the Board elected in a 12-month period
or less are so elected without the approval of a majority of the Board as
constituted at the beginning of such period; or a liquidation or dissolution of
Company.
3. TERMINATION FOLLOWING CHANGE IN CONTROL. If any of the events described
in Section 2 above constituting a Change In Control of the Company shall have
occurred, you shall be entitled to the benefits provided in subsection 4.3 below
on the subsequent termination or "Constructive Termination" of your employment
during the term of this Agreement, unless the termination is (A) because of your
death, Disability or Retirement, (B) by the Company for Cause, or (C) by you
other than for Good Reason.
3.1 DISABILITY; RETIREMENT. If, as a result of your incapacity due to
physical or mental illness, you shall have been absent from the full-time
performance of your duties with the Company for 6 consecutive months, and within
30 days after written notice of termination is given you shall not have returned
to the full-time performance of your duties, your employment may be terminated
for "Disability." Termination by the Company or you of your employment based on
"Retirement" shall mean termination in accordance with the Company's retirement
policy, including early retirement, generally applicable to its salaried
employees or in accordance with any retirement arrangement established with your
consent with respect to you.
3.2 CAUSE. Termination by the Company of your employment for "Cause"
shall mean termination on:
3.2.1 the willful and continued failure by you to
substantially perform your duties with the Company
as such employment was performed by you prior to
the Change of Control (other than any such failure
resulting from your incapacity due to physical or
mental illness or any such actual or anticipated
failure after the issuance by you of a Notice of
Termination for Good Reason as defined in
Subsections 3.4 and 3.3, respectively) after a
written demand for substantial performance is
delivered to you by the Board, which demand
specifically identifies the manner in which the
Board believes that you have not substantially
performed your duties; or
3.2.2 the willful act by you in conduct that is
demonstrably and materially injurious to the
Company, and which the Board deems to cause or
will cause substantial economic damage to the
Company or injury to the business reputation of
the Company, monetarily or otherwise. For purposes
of this Subsection, no act, or failure to act, on
your part shall be deemed "willful" unless done,
or omitted to be done, by you not in good faith
and without a reasonable belief that your action
or omission was in the best interest of the
Company. Notwithstanding the foregoing, you shall
not be deemed to have been terminated for Cause
unless and until there shall have been delivered
to you a copy of a resolution duly adopted by the
affirmative vote of not less than three-quarters
of the entire membership of the Board at a meeting
of the Board called and held for such purpose
(after reasonable notice to you and an opportunity
for you, together with your counsel, to be heard
before the Board), finding that in the good faith
opinion of the Board you were guilty of conduct
set forth above in clauses 3.2.1 or 3.2.2 of the
first sentence of this Subsection and specifying
the particulars in detail.
3.3 GOOD REASON. You shall be entitled to terminate your employment
for Good Reason. For purposes of this Agreement, "Good Reason" shall mean,
without your express written consent, the occurrence in connection with a Change
In Control of the Company of any of the following circumstances unless, in the
case of paragraphs 3.3.1, 3.3.5, 3.3.6, 3.3.7, or 3.3.8, the circumstances are
fully corrected prior to the Date of Termination specified in the Notice of
Termination, as defined in Subsections 3.5 and 3.4, respectively, given in
respect of them. If you have Good Reason for your termination you shall be
considered to have been "Constructively Terminated" by the Company:
3.3.1 the assignment to you of any duties inconsistent
with your status and position (i) prior to the
Change In Control where such change is a direct
result of any pending Change in Control; or (ii)
as such status exists immediately prior to the
Change In Control of the Company, or (iii) a
substantial adverse alteration in the nature or
status of your responsibilities from those in
effect immediately prior to the Change In Control
of the Company whichever is applicable;
3.3.2 a reduction by the Company in your annual base
salary as in effect on this date or as the same
may be increased from time to time irrespective of
future Company policies including any
across-the-board salary reductions similarly
affecting all key employees of the Company;
3.3.3 your relocation, without your consent, to a
location not within twenty five (25) miles of your
present office or job location, except for
required travel on the Company's business to an
extent substantially consistent with your present
business travel obligations;
3.3.4 the failure by the Company, without your consent,
to pay to you any part of your current
compensation, or to pay to you any part of an
installment of deferred compensation under any
deferred compensation program of the Company,
within fourteen (14) days of the date the
compensation is due;
3.3.5 the failure by the Company to continue in effect
any bonus to which you were entitled, or any
compensation plan in which you participate (i)
prior to the Change in Control where such change
is a direct result of any pending Change In
Control; or (ii) immediately prior to the Change
In Control of the Company that is material to your
total compensation, including but not limited to
the Company's Restricted Stock Plan, 401(k) Plan,
and Benefit Plans, or any substitute plans adopted
prior to the Change In Control of the Company,
unless an equitable arrangement (embodied in an
ongoing substitute or alternative plan) has been
made with respect to the plan, or the failure by
the Company to continue your participation in it
(or in such substitute or alternative plan) on a
basis not materially less favorable, both in terms
of the amount of benefits provided and the level
of your participation relative to other
participants, as existed at the time of the Change
In Control;
3.3.6 the failure by the Company to continue to provide
you with (i) benefits substantially similar to
those enjoyed by you under any of the Company's
life insurance, medical, health and accident, or
disability plans in which you were participating
at the time of the Change In Control of the
Company was in effect for the employees of the
Company generally at the time of the Change In
Control, (ii) the failure to continue to provide
you with a Company automobile or allowance in lieu
of it at the time of the Change In Control of the
Company, (iii) the taking of any action by the
Company that would directly or indirectly
materially reduce any of such benefits or deprive
you of any material fringe benefit enjoyed by you
at the time of the Change In Control of the
Company, or (iv) the failure by the Company to
provide you with the number of paid vacation days
to which you are entitled on the basis of years of
service with the Company in accordance with the
Company's normal vacation policy in effect at the
time of the Change In Control of the Company;
3.3.7 the failure of the Company to obtain a
satisfactory agreement from any successor to
assume and agree to perform this Agreement, as
contemplated in Section 5 of this Agreement; or
3.3.8 any purported termination of your employment that
is not effected pursuant to a Notice of
Termination satisfying the requirements of
Subsection 3.4 below (and, if applicable, the
requirements of Subsection 3.2 above); for
purposes of this Agreement, no such purported
termination shall be effective. Your rights to
terminate your employment pursuant to this
Subsection shall not be affected by your
incapacity due to physical or mental illness. Your
continued employment shall not constitute consent
to, or a waiver of rights with respect to, any
circumstance constituting Good Reason under this
Agreement. In the event you deliver Notice of
Termination based on circumstances set forth in
Paragraphs 3.3.1, 3.3.5, 3.3.6, 3.3.7, or 3.3.8
above, which are fully corrected prior to the Date
of Termination set forth in your Notice of
Termination, the Notice of Termination shall be
deemed withdrawn and of no further force or
effect.
3.4 NOTICE OF TERMINATION. Any purported termination of your
employment by the Company or by you shall be communicated by written Notice of
Termination to the other party to this Agreement in accordance with Section 6 of
this Agreement. For purposes of this Agreement, a "Notice of Termination" shall
mean a notice that shall indicate the specific termination provision in this
Agreement relied on, and shall set forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of your employment
under the provision so indicated.
3.5 DATE OF TERMINATION, ETC. "Date of Termination" shall mean (A) if
your employment is terminated for Disability, 30 days after Notice of
Termination is given (provided that you shall not have returned to the full-time
performance of your duties during such 30-day period), and (B) if your
employment is terminated pursuant to Subsection 3.2 or 3.3 above or for any
other reason (other than Disability), the date specified in the Notice of
Termination (which, in the case of a termination pursuant to Subsection 3.2
above shall not be less than 30 days, and in the case of a termination pursuant
to Subsection 3.3 above shall not be less than 15 nor more than 60 days,
respectively, from the date the Notice of Termination is given). However, if
within 15 days after any Notice of Termination is given, or, if later, prior to
the Date of Termination (as determined without regard to this provision), the
party receiving the Notice of Termination notifies the other party that a
dispute exists concerning the termination, then the Date of Termination shall be
the date on which the dispute is finally determined, either by mutual written
agreement of the parties, by a binding arbitration award, or by a final
judgment, order, or decree of a court of competent jurisdiction (which is not
appealable or with respect to which the time for appeal has expired and no
appeal has been perfected). The Date of Termination shall be extended by a
notice of dispute only if the notice is given in good faith and the party giving
the notice pursues the resolution of the dispute with reasonable diligence.
Notwithstanding the pendency of any such dispute, the Company will continue to
pay you your full compensation in effect when the notice giving rise to the
dispute was given (including, but not limited to, base salary) and continue you
as a participant in all compensation, benefit, and insurance plans in which you
were participating when the notice giving rise to the dispute was given, until
the dispute is finally resolved in accordance with this Subsection. Amounts paid
under this Subsection are in addition to all other amounts due under this
Agreement and shall not be offset against or reduce any other amounts due under
this Agreement except to the extent otherwise provided in subsection 4.4.
4. COMPENSATION ON TERMINATION OR DURING DISABILITY. Following a Change In
Control of the Company, as defined by Section 2, on termination of your
employment or during a period of disability you shall be entitled to the
following benefits:
4.1 During any period that you fail to perform your full-time duties
with the Company as a result of incapacity due to physical or mental illness,
you shall continue to receive your base salary at the rate in effect at the
commencement of any such period, together with all amounts payable to you under
any compensation plan of the Company during the period, until this Agreement is
terminated pursuant to section 3.1 above. Thereafter, or in the event your
employment shall be terminated by the Company or by you for Retirement, or by
reason of your death, your benefits shall be determined under the Company's
retirement, insurance, and other compensation programs then in effect in
accordance with the terms of those programs.
4.2 If your employment shall be terminated by the Company for Cause or
by you other than for Good Reason, Disability, death, or Retirement, the Company
shall pay you your full base salary through the Date of Termination at the rate
in effect at the time Notice of Termination is given, plus all other amounts and
benefits to which you are entitled under any compensation plan of the Company at
the time the payments are due. The Company shall have no obligations to you
under this Agreement.
4.3 If your employment by the Company shall be terminated (a) by the
Company other than for Cause, Retirement or Disability, or (b) by you for Good
Reason, then you shall be entitled to the benefits provided below:
4.3.1 The Company shall pay you your full salary through
the Date of Termination at the rate in effect at
the time notice of Termination is given, plus all
other amounts and benefits to which you are
entitled under any compensation plan of the
Company, at the time the payments are due, except
as otherwise provided below.
4.3.2 In lieu of any further salary payments to you for
periods subsequent to the Date of Termination, the
Company shall pay to you, as severance pay the
following: (i) a lump sum severance payment equal
to three (3) times the average of your
Compensation for the five (5) years prior to the
occurrence of the circumstance giving rise to the
notice of Termination, plus (ii) the amounts in
the forms set forth in paragraphs 4.3.3, 4.3.4 and
4.3.5 (the "Severance Payments"). In addition to
the Severance Payments, the Company shall pay to
you an additional amount equal to the amount of
the Excise Tax, if any, that is due or determined
to be due under Section 4999 of the Internal
Revenue Code of 1986, as amended, resulting from
the Severance Payments or any other payments under
this Agreement or any other agreement between you
and the Company and an amount sufficient to pay
the taxes on any such Excise Taxes (the
"Gross-up"). For purposes of this Agreement,
"Compensation" shall mean the aggregate
remuneration paid by the Company to you during a
calendar year, including bonuses, awards under the
Company's Restricted Stock Plan, benefits under
employee benefit plans, automobile allowances or
any fees paid to you as remuneration for serving
as a Director of the Company.
4.3.3 The Company shall continue coverage for you and
your dependents under any health or welfare
benefit plan under which you and your dependents
were participating prior to THE CHANGE IN CONTROL
FOR A PERIOD ENDING ON THE EARLIER to occur of (i)
the date you become covered by a new employer's
health and welfare benefit plan, (ii) the date you
become covered by Medicare, or (iii) the date
which is thirty-six (36) months from the date of
Termination. The coverage for your dependents
shall end earlier than (i), (ii) or (iii) if
required by the health or welfare benefit plan due
to age eligibility.
4.3.4 The Company shall pay to you any deferred
compensation, including, but not limited to
deferred bonuses, allocated or credited to you or
your account as of the Date of Termination.
4.3.5 Outstanding stock options or Restricted Stock
grants, if any, granted to you under the Company's
Stock Plans which are not vested on Termination
shall immediately vest.
4.3.6 Where you shall prevail in any such action, the
Company shall also pay to you all legal and
accounting fees and expenses incurred by you as a
result of the termination (including all such fees
and expenses incurred by you as a result of the
termination (including all such fees and expenses,
if any, incurred in contesting or disputing any
termination or in seeking to obtain or enforce any
right or benefit provided by this Agreement or in
connection with any tax audit or proceeding to the
extent attributable to the application of Code
Section 4999 to any payment or benefit provided
under this Agreement) or any other agreement with
the Company.
4.3.7 The amount of Severance Payments and any Gross-up
due to you under this or any other relevant
agreement with the Company shall be determined by
a third party agreed to by you and the Company. If
you cannot agree on a third party, then both third
parties shall determine the amounts due under this
Agreement. If the third parties do not agree on
the amount to be paid to you, then either party
may submit the calculation of the amounts which
are in dispute to Arbitration in accordance with
this Agreement. The payments provided for in
Paragraphs 4.3.2, 4.3.4 AND 4.3.5 ABOVE, SHALL BE
MADE NO LATER THAN THE THIRTIETH (30TH) day
following the Date of Termination. However, if the
amounts of the payments cannot be finally
determined on or before that day, the Company
shall pay to you on that day an estimate, as
determined in good faith by the Company, of the
minimum amount of such payments and shall pay the
remainder of those payments (together with
interest at the rate provided in Section
1274(b)(2)(B) of the Code) as soon as the amount
can be determined but in no event later than the
30th day after the Date of Termination. In the
event that the amount of the estimate payments
exceeds the amount subsequently determined to have
been due, the excess shall constitute a loan by
the Company to you payable on the 30th day after
demand by the Company (together with interest at
the rate provided in Section 1274(b)(2)(B) of the
Code).
4.4 You shall not be required to mitigate the amount of any payment
provided for in this Section 4 by seeking other employment or otherwise, nor
shall the amount of any payment or benefit provided for in this Section 4 be
reduced by any compensation earned by you as the result of employment by another
employer, by retirement benefits, by offset against any amount claimed to be
owed by you to the Company, or otherwise except as specifically provided in this
Section 4.
4.5 In addition to all other amounts payable to you under this Section
4, you shall be entitled to receive all qualified benefits payable to
you under the Company's 401(k) Plan, Defined Benefit Plan and any other plan or
agreement relating to retirement benefits.
5. SUCCESSORS; BINDING AGREEMENT.
5.1 The Company will require any successor (whether direct or
indirect, by purchase, merger, consolidation, or otherwise) to all or
substantially all of the business and/or assets of the Company 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. Failure of the Company to obtain the assumption and agreement
prior to the effectiveness of any succession shall be a breach of this agreement
and shall entitle you to compensation from the Company in the same amount and on
the same terms as you would have been entitled to under this Agreement if you
had terminated your employment for Good Reason following a Change In Control of
the Company, except that for purposes of implementing the foregoing, the date on
which any such succession becomes effective shall be deemed the Date of
Termination.
5.2 This Agreement shall inure to the benefit of and be enforceable by
your personal or legal representatives, executors, administrators, heirs,
distributees, and legatees. If you should die while any amount would still be
payable to you if you had continued to live, all such amounts, unless otherwise
provided in this Agreement, shall be paid in accordance with the terms of this
Agreement to your legatee or other designee or, if there is no such designee, to
your estate.
6. NOTICE. For the purpose of this Agreement, all notices and other
communications provided for in the Agreement shall be in writing and shall be
deemed to have been duly given when delivered or mailed by United States
registered or certified mail, return receipt requested, postage prepaid,
addressed to the respective addresses set forth on the first page of this
Agreement, provided that all notices to the Company shall be directed to the
attention of the Board with a copy to the Secretary of the Company, or to such
other address as either party may have furnished to the other in writing in
accordance this Agreement, except that notice of a change of address shall be
effective only on receipt.
7. MISCELLANEOUS.
7.1 No provision of this Agreement may be modified, waived, or
discharged unless the waiver, modification, or discharge is agreed to in writing
and signed by you and such officer as may be specifically designated by the
Board.
7.2 No waiver by either party to this Agreement at any time of any
breach by the other party of, or compliance with, any condition or provision of
this Agreement to be performed by such other party shall be deemed a waiver of
similar or dissimilar provisions or conditions at the same or at any prior or
subsequent time.
7.3 No agreements or representations, oral or otherwise, express or
implied, with respect to the subject matter of this Agreement have been made by
either party that are not expressly set forth in this Agreement.
7.4 Nothing in this Agreement is intended to reduce any benefits
payable to you under any other agreement you may have with the Company or in any
Company plan in which you may participate.
7.5 The validity, interpretation, construction, and performance of
this Agreement shall be governed by the law of New Jersey without reference to
its conflict of laws principals.
7.6 All references to sections of the Exchange Act or the Code shall
be deemed also to refer to any successor provisions to such sections. Any
payments provided for shall be paid net of any applicable withholding or
deduction required under federal, state or local law.
7.7 The obligations of the Company under Section 4 shall survive the
expiration of the term of this Agreement.
8. VALIDITY. The validity or enforceability of any provision of this
Agreement shall not affect the validity or unenforceability of any other
provision of this Agreement, which shall remain in full force and effect.
9. COUNTERPARTS. This Agreement may be executed in several counterparts,
each of which shall be deemed to be an original but all of which together will
constitute one and the same instrument.
10. ARBITRATION. Any dispute or controversy arising under or in connection
with this Agreement shall be settled exclusively by arbitration in New Jersey in
accordance with the rules of the American Arbitration Association then in
effect. Judgment may be entered on the arbitrator's award in any court having
jurisdiction. However, you shall be entitled to seek specific performance of
your right to be paid until the Date of Termination during the pendency of any
dispute or controversy arising under or in connection this Agreement.
11. ENTIRE AGREEMENT. This Agreement sets forth the entire understanding of
the parties with respect to its subject matter and supersedes all prior written
or oral agreements or understandings with respect to the subject matter.
In witness whereof, the parties have executed this agreement as of the day
and year first above written.
MIDDLESEX WATER COMPANY
By: /s/ J. Xxxxxxx Xxxxxxxx
-----------------------------------
J. Xxxxxxx Xxxxxxxx
Chairman of the Board and President
ATTEST:
/s/ Xxxxxx X. Xxxxxxxx
----------------------
Xxxxxx X. Xxxxxxxx
Vice President
Secretary and Treasurer
/s/ Xxxxxx X. Xxxxx
---------------------------
Xxxxxx X. Xxxxx
Exhibit 10.15(c)
CHANGE IN CONTROL TERMINATION AGREEMENT
This Change in Control Termination Agreement (the "Agreement") is entered
into on April 7, 1999, between Middlesex Water Company, a New Jersey
corporation, with its principal place of business located at 0000 Xxxxxx Xxxx,
X.X. Xxx 0000, Xxxxxx, Xxx Xxxxxx 00000-0000, (the "Company"), and A. Xxxxx
X'Xxxxxx, residing at 00 Xxxxxxxxxx Xxx, Xxxxxxxx, Xxx Xxxxxx 00000.
RECITALS
A. The Company considers it essential to the best interests of its
stockholders to xxxxxx the continuous employment of key management personnel. In
this connection, the Board of Directors of the Company (the "Board") recognizes
that, as is the case with many publicly held Companies, the possibility of a
Change In Control may exist. This possibility, and the uncertainty and questions
that it may raise among management, may result in the departure or distraction
of management personnel to the detriment of the Company and its stockholders.
B. The Board has determined that appropriate steps should be taken to
reinforce and encourage the continued attention and dedication of members of the
Company's management, including yourself, to the assigned duties without
distraction in the face of potentially disturbing circumstances arising from the
possibility of a Change In Control of the Company.
C. To induce you to remain in the employ of the Company, and in
consideration of your agreement set forth below, the Company agrees that you
shall receive the severance benefits set forth in this Agreement in the event
your employment with the Company is terminated or "constructively terminated" as
defined herein in connection with a "Change In Control of the Company" (as
defined in Section 2 below) under the circumstances described below. This
Agreement is meant to supersede any other specific written agreements that may
have been entered into between yourself and the Company concerning termination
of employment.
Therefore, in consideration of your continued employment and the parties'
agreement to be bound by the terms contained in this Agreement, the parties
agree as follows:
1. TERM OF AGREEMENT. This Agreement shall commence as of April 8, 1999 and
shall continue in effect through December 31, 2001. However, commencing on
December 31, 2001, and each December 31 afterwards, the term of this Agreement
shall automatically be extended for 1 additional year unless, no later than the
preceding November 1, the Company shall have given notice that it does not wish
to extend this Agreement. Notwithstanding the foregoing, if a Change In Control
of the Company shall be proposed to occur or have occurred during the original
or any extended term of this Agreement, this Agreement shall continue in effect
for a period of three years beyond the month in which the Change In Control
occurs. Notwithstanding the foregoing, and provided no Change of Control shall
have occurred, this Agreement shall automatically terminate on the earlier to
occur of (i) your termination of employment with the Company, or (ii) the
Company's furnishing you with notice of termination, irrespective of the
effective date of the termination.
2. CHANGE IN CONTROL. No benefits shall be payable under this Agreement
unless there shall have been a Change In Control of the Company, as set forth
below. For purposes of this Agreement, a "Change In Control" of the Company
shall be deemed to occur if any party or group acquires beneficial ownership of
20 percent or more of the voting shares of the Company; or if shareholder
approval is required for a transaction involving the acquisition of the Company
through the purchase or exchange of the stock or assets of the Company by merger
or otherwise; or if one-third or more of the Board elected in a 12-month period
or less are so elected without the approval of a majority of the Board as
constituted at the beginning of such period; or a liquidation or dissolution of
Company.
3. TERMINATION FOLLOWING CHANGE IN CONTROL. If any of the events described
in Section 2 above constituting a Change In Control of the Company shall have
occurred, you shall be entitled to the benefits provided in subsection 4.3 below
on the subsequent termination or "Constructive Termination" of your employment
during the term of this Agreement, unless the termination is (A) because of your
death, Disability or Retirement, (B) by the Company for Cause, or (C) by you
other than for Good Reason.
3.1 DISABILITY; RETIREMENT. If, as a result of your incapacity due to
physical or mental illness, you shall have been absent from the full-time
performance of your duties with the Company for 6 consecutive months, and within
30 days after written notice of termination is given you shall not have returned
to the full-time performance of your duties, your employment may be terminated
for "Disability." Termination by the Company or you of your employment based on
"Retirement" shall mean termination in accordance with the Company's retirement
policy, including early retirement, generally applicable to its salaried
employees or in accordance with any retirement arrangement established with your
consent with respect to you.
3.2 CAUSE. Termination by the Company of your employment for "Cause"
shall mean termination on:
3.2.1 the willful and continued failure by you to
substantially perform your duties with the Company
as such employment was performed by you prior to
the Change of Control (other than any such failure
resulting from your incapacity due to physical or
mental illness or any such actual or anticipated
failure after the issuance by you of a Notice of
Termination for Good Reason as defined in
Subsections 3.4 and 3.3, respectively) after a
written demand for substantial performance is
delivered to you by the Board, which demand
specifically identifies the manner in which the
Board believes that you have not substantially
performed your duties; or
3.2.2 the willful act by you in conduct that is
demonstrably and materially injurious to the
Company, and which the Board deems to cause or
will cause substantial economic damage to the
Company or injury to the business reputation of
the Company, monetarily or otherwise. For purposes
of this Subsection, no act, or failure to act, on
your part shall be deemed "willful" unless done,
or omitted to be done, by you not in good faith
and without a reasonable belief that your action
or omission was in the best interest of the
Company. Notwithstanding the foregoing, you shall
not be deemed to have been terminated for Cause
unless and until there shall have been delivered
to you a copy of a resolution duly adopted by the
affirmative vote of not less than three-quarters
of the entire membership of the Board at a meeting
of the Board called and held for such purpose
(after reasonable notice to you and an opportunity
for you, together with your counsel, to be heard
before the Board), finding that in the good faith
opinion of the Board you were guilty of conduct
set forth above in clauses 3.2.1 or 3.2.2 of the
first sentence of this Subsection and specifying
the particulars in detail.
3.3 GOOD REASON. You shall be entitled to terminate your employment
for Good Reason. For purposes of this Agreement, "Good Reason" shall mean,
without your express written consent, the occurrence in connection with a Change
In Control of the Company of any of the following circumstances unless, in the
case of paragraphs 3.3.1, 3.3.5, 3.3.6, 3.3.7, or 3.3.8, the circumstances are
fully corrected prior to the Date of Termination specified in the Notice of
Termination, as defined in Subsections 3.5 and 3.4, respectively, given in
respect of them. If you have Good Reason for your termination you shall be
considered to have been "Constructively Terminated" by the Company:
3.3.1 the assignment to you of any duties inconsistent
with your status and position (i) prior to the
Change In Control where such change is a direct
result of any pending Change in Control; or (ii)
as such status exists immediately prior to the
Change In Control of the Company, or (iii) a
substantial adverse alteration in the nature or
status of your responsibilities from those in
effect immediately prior to the Change In Control
of the Company whichever is applicable;
3.3.2 a reduction by the Company in your annual base
salary as in effect on this date or as the same
may be increased from time to time irrespective of
future Company policies including any
across-the-board salary reductions similarly
affecting all key employees of the Company;
3.3.3 your relocation, without your consent, to a
location not within twenty five (25) miles of your
present office or job location, except for
required travel on the Company's business to an
extent substantially consistent with your present
business travel obligations;
3.3.4 the failure by the Company, without your consent,
to pay to you any part of your current
compensation, or to pay to you any part of an
installment of deferred compensation under any
deferred compensation program of the Company,
within fourteen (14) days of the date the
compensation is due;
3.3.5 the failure by the Company to continue in effect
any bonus to which you were entitled, or any
compensation plan in which you participate (i)
prior to the Change in Control where such change
is a direct result of any pending Change In
Control; or (ii) immediately prior to the Change
In Control of the Company that is material to your
total compensation, including but not limited to
the Company's Restricted Stock Plan, 401(k) Plan,
and Benefit Plans, or any substitute plans adopted
prior to the Change In Control of the Company,
unless an equitable arrangement (embodied in an
ongoing substitute or alternative plan) has been
made with respect to the plan, or the failure by
the Company to continue your participation in it
(or in such substitute or alternative plan) on a
basis not materially less favorable, both in terms
of the amount of benefits provided and the level
of your participation relative to other
participants, as existed at the time of the Change
In Control;
3.3.6 the failure by the Company to continue to provide
you with (i) benefits substantially similar to
those enjoyed by you under any of the Company's
life insurance, medical, health and accident, or
disability plans in which you were participating
at the time of the Change In Control of the
Company was in effect for the employees of the
Company generally at the time of the Change In
Control, (ii) the failure to continue to provide
you with a Company automobile or allowance in lieu
of it at the time of the Change In Control of the
Company, (iii) the taking of any action by the
Company that would directly or indirectly
materially reduce any of such benefits or deprive
you of any material fringe benefit enjoyed by you
at the time of the Change In Control of the
Company, or (iv) the failure by the Company to
provide you with the number of paid vacation days
to which you are entitled on the basis of years of
service with the Company in accordance with the
Company's normal vacation policy in effect at the
time of the Change In Control of the Company;
3.3.7 the failure of the Company to obtain a
satisfactory agreement from any successor to
assume and agree to perform this Agreement, as
contemplated in Section 5 of this Agreement; or
3.3.8 any purported termination of your employment that
is not effected pursuant to a Notice of
Termination satisfying the requirements of
Subsection 3.4 below (and, if applicable, the
requirements of Subsection 3.2 above); for
purposes of this Agreement, no such purported
termination shall be effective.
Your rights to terminate your employment pursuant to this
Subsection shall not be affected by your incapacity due to physical or mental
illness. Your continued employment shall not constitute consent to, or a waiver
of rights with respect to, any circumstance constituting Good Reason under this
Agreement. In the event you deliver Notice of Termination based on circumstances
set forth in Paragraphs 3.3.1, 3.3.5, 3.3.6, 3.3.7, or 3.3.8 above, which are
fully corrected prior to the Date of Termination set forth in your Notice of
Termination, the Notice of Termination shall be deemed withdrawn and of no
further force or effect.
3.4 NOTICE OF TERMINATION. Any purported termination of your
employment by the Company or by you shall be communicated by written Notice of
Termination to the other party to this Agreement in accordance with Section 6 of
this Agreement. For purposes of this Agreement, a "Notice of Termination" shall
mean a notice that shall indicate the specific termination provision in this
Agreement relied on, and shall set forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of your employment
under the provision so indicated.
3.5 DATE OF TERMINATION, ETC. "Date of Termination" shall mean (A) if
your employment is terminated for Disability, 30 days after Notice of
Termination is given (provided that you shall not have returned to the full-time
performance of your duties during such 30-day period), and (B) if your
employment is terminated pursuant to Subsection 3.2 or 3.3 above or for any
other reason (other than Disability), the date specified in the Notice of
Termination (which, in the case of a termination pursuant to Subsection 3.2
above shall not be less than 30 days, and in the case of a termination pursuant
to Subsection 3.3 above shall not be less than 15 nor more than 60 days,
respectively, from the date the Notice of Termination is given). However, if
within 15 days after any Notice of Termination is given, or, if later, prior to
the Date of Termination (as determined without regard to this provision), the
party receiving the Notice of Termination notifies the other party that a
dispute exists concerning the termination, then the Date of Termination shall be
the date on which the dispute is finally determined, either by mutual written
agreement of the parties, by a binding arbitration award, or by a final
judgment, order, or decree of a court of competent jurisdiction (which is not
appealable or with respect to which the time for appeal has expired and no
appeal has been perfected). The Date of Termination shall be extended by a
notice of dispute only if the notice is given in good faith and the party giving
the notice pursues the resolution of the dispute with reasonable diligence.
Notwithstanding the pendency of any such dispute, the Company will continue to
pay you your full compensation in effect when the notice giving rise to the
dispute was given (including, but not limited to, base salary) and continue you
as a participant in all compensation, benefit, and insurance plans in which you
were participating when the notice giving rise to the dispute was given, until
the dispute is finally resolved in accordance with this Subsection. Amounts paid
under this Subsection are in addition to all other amounts due under this
Agreement and shall not be offset against or reduce any other amounts due under
this Agreement except to the extent otherwise provided in subsection 4.4.
4. COMPENSATION ON TERMINATION OR DURING DISABILITY. Following a Change In
Control of the Company, as defined by Section 2, on termination of your
employment or during a period of disability you shall be entitled to the
following benefits:
4.1 During any period that you fail to perform your full-time duties
with the Company as a result of incapacity due to physical or mental illness,
you shall continue to receive your base salary at the rate in effect at the
commencement of any such period, together with all amounts payable to you under
any compensation plan of the Company during the period, until this Agreement is
terminated pursuant to section 3.1 above. Thereafter, or in the event your
employment shall be terminated by the Company or by you for Retirement, or by
reason of your death, your benefits shall be determined under the Company's
retirement, insurance, and other compensation programs then in effect in
accordance with the terms of those programs.
4.2 If your employment shall be terminated by the Company for Cause or
by you other than for Good Reason, Disability, death, or Retirement, the Company
shall pay you your full base salary through the Date of Termination at the rate
in effect at the time Notice of Termination is given, plus all other amounts and
benefits to which you are entitled under any compensation plan of the Company at
the time the payments are due. The Company shall have no obligations to you
under this Agreement.
4.3 If your employment by the Company shall be terminated (a) by the
Company other than for Cause, Retirement or Disability, or (b) by you for Good
Reason, then you shall be entitled to the benefits provided below:
4.3.1 The Company shall pay you your full salary through
the Date of Termination at the rate in effect at
the time notice of Termination is given, plus all
other amounts and benefits to which you are
entitled under any compensation plan of the
Company, at the time the payments are due, except
as otherwise provided below.
4.3.2 In lieu of any further salary payments to you for
periods subsequent to the Date of Termination, the
Company shall pay to you, as severance pay the
following: (i) a lump sum severance payment equal
to three (3) times the average of your
Compensation for the five (5) years prior to the
occurrence of the circumstance giving rise to the
notice of Termination, plus (ii) the amounts in
the forms set forth in paragraphs 4.3.3, 4.3.4 and
4.3.5 (the "Severance Payments"). In addition to
the Severance Payments, the Company shall pay to
you an additional amount equal to the amount of
the Excise Tax, if any, that is due or determined
to be due under Section 4999 of the Internal
Revenue Code of 1986, as amended, resulting from
the Severance Payments or any other payments under
this Agreement or any other agreement between you
and the Company and an amount sufficient to pay
the taxes on any such Excise Taxes (the
"Gross-up"). For purposes of this Agreement,
"Compensation" shall mean the aggregate
remuneration paid by the Company to you during a
calendar year, including bonuses, awards under the
Company's Restricted Stock Plan, benefits under
employee benefit plans, automobile allowances or
any fees paid to you as remuneration for serving
as a Director of the Company.
4.3.3 The Company shall continue coverage for you and
your dependents under any health or welfare
benefit plan under which you and your dependents
were participating prior to THE CHANGE IN CONTROL
FOR A PERIOD ENDING ON THE EARLIER to occur of (i)
the date you become covered by a new employer's
health and welfare benefit plan, (ii) the date you
become covered by Medicare, or (iii) the date
which is thirty-six (36) months from the date of
Termination. The coverage for your dependents
shall end earlier than (i), (ii) or (iii) if
required by the health or welfare benefit plan due
to age eligibility.
4.3.4 The Company shall pay to you any deferred
compensation, including, but not limited to
deferred bonuses, allocated or credited to you or
your account as of the Date of Termination.
4.3.5 Outstanding stock options or Restricted Stock
grants, if any, granted to you under the Company's
Stock Plans which are not vested on Termination
shall immediately vest.
4.3.6 Where you shall prevail in any such action, the
Company shall also pay to you all legal and
accounting fees and expenses incurred by you as a
result of the termination (including all such fees
and expenses incurred by you as a result of the
termination (including all such fees and expenses,
if any, incurred in contesting or disputing any
termination or in seeking to obtain or enforce any
right or benefit provided by this Agreement or in
connection with any tax audit or proceeding to the
extent attributable to the application of Code
Section 4999 to any payment or benefit provided
under this Agreement) or any other agreement with
the Company.
4.3.7 The amount of Severance Payments and any Gross-up
due to you under this or any other relevant
agreement with the Company shall be determined by
a third party agreed to by you and the Company. If
you cannot agree on a third party, then both third
parties shall determine the amounts due under this
Agreement. If the third parties do not agree on
the amount to be paid to you, then either party
may submit the calculation of the amounts which
are in dispute to Arbitration in accordance with
this Agreement. The payments provided for in
Paragraphs 4.3.2, 4.3.4 AND 4.3.5 ABOVE, SHALL BE
MADE NO LATER THAN THE THIRTIETH (30TH) day
following the Date of Termination. However, if the
amounts of the payments cannot be finally
determined on or before that day, the Company
shall pay to you on that day an estimate, as
determined in good faith by the Company, of the
minimum amount of such payments and shall pay the
remainder of those payments (together with
interest at the rate provided in Section
1274(b)(2)(B) of the Code) as soon as the amount
can be determined but in no event later than the
30th day after the Date of Termination. In the
event that the amount of the estimate payments
exceeds the amount subsequently determined to have
been due, the excess shall constitute a loan by
the Company to you payable on the 30th day after
demand by the Company (together with interest at
the rate provided in Section 1274(b)(2)(B) of the
Code).
4.4 You shall not be required to mitigate the amount of any payment
provided for in this Section 4 by seeking other employment or otherwise, nor
shall the amount of any payment or benefit provided for in this Section 4 be
reduced by any compensation earned by you as the result of employment by another
employer, by retirement benefits, by offset against any amount claimed to be
owed by you to the Company, or otherwise except as specifically provided in this
Section 4.
4.5 In addition to all other amounts payable to you under this Section
4, you shall be entitled to receive all qualified benefits payable to you under
the Company's 401(k) Plan, Defined Benefit Plan and any other plan or agreement
relating to retirement benefits.
5. SUCCESSORS; BINDING AGREEMENT.
5.1 The Company will require any successor (whether direct or
indirect, by purchase, merger, consolidation, or otherwise) to all or
substantially all of the business and/or assets of the Company 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. Failure of the Company to obtain the assumption and agreement
prior to the effectiveness of any succession shall be a breach of this agreement
and shall entitle you to compensation from the Company in the same amount and on
the same terms as you would have been entitled to under this Agreement if you
had terminated your employment for Good Reason following a Change In Control of
the Company, except that for purposes of implementing the foregoing, the date on
which any such succession becomes effective shall be deemed the Date of
Termination.
5.2 This Agreement shall inure to the benefit of and be enforceable by
your personal or legal representatives, executors, administrators, heirs,
distributees, and legatees. If you should die while any amount would still be
payable to you if you had continued to live, all such amounts, unless otherwise
provided in this Agreement, shall be paid in accordance with the terms of this
Agreement to your legatee or other designee or, if there is no such designee, to
your estate.
6. NOTICE. For the purpose of this Agreement, all notices and other
communications provided for in the Agreement shall be in writing and shall be
deemed to have been duly given when delivered or mailed by United States
registered or certified mail, return receipt requested, postage prepaid,
addressed to the respective addresses set forth on the first page of this
Agreement, provided that all notices to the Company shall be directed to the
attention of the Board with a copy to the Secretary of the Company, or to such
other address as either party may have furnished to the other in writing in
accordance this Agreement, except that notice of a change of address shall be
effective only on receipt.
7. MISCELLANEOUS.
7.1 No provision of this Agreement may be modified, waived, or
discharged unless the waiver, modification, or discharge is agreed to in writing
and signed by you and such officer as may be specifically designated by the
Board.
7.2 No waiver by either party to this Agreement at any time of any
breach by the other party of, or compliance with, any condition or provision of
this Agreement to be performed by such other party shall be deemed a waiver of
similar or dissimilar provisions or conditions at the same or at any prior or
subsequent time.
7.3 No agreements or representations, oral or otherwise, express or
implied, with respect to the subject matter of this Agreement have been made by
either party that are not expressly set forth in this Agreement.
7.4 Nothing in this Agreement is intended to reduce any benefits
payable to you under any other agreement you may have with the Company or in any
Company plan in which you may participate.
7.5 The validity, interpretation, construction, and performance of
this Agreement shall be governed by the law of New Jersey without reference to
its conflict of laws principals.
7.6 All references to sections of the Exchange Act or the Code shall
be deemed also to refer to any successor provisions to such sections. Any
payments provided for shall be paid net of any applicable withholding or
deduction required under federal, state or local law.
7.7 The obligations of the Company under Section 4 shall survive the
expiration of the term of this Agreement.
8. VALIDITY. The validity or enforceability of any provision of this
Agreement shall not affect the validity or unenforceability of any other
provision of this Agreement, which shall remain in full force and effect.
9. COUNTERPARTS. This Agreement may be executed in several counterparts,
each of which shall be deemed to be an original but all of which together will
constitute one and the same instrument.
10. ARBITRATION. Any dispute or controversy arising under or in connection
with this Agreement shall be settled exclusively by arbitration in New Jersey in
accordance with the rules of the American Arbitration Association then in
effect. Judgment may be entered on the arbitrator's award in any court having
jurisdiction. However, you shall be entitled to seek specific performance of
your right to be paid until the Date of Termination during the pendency of any
dispute or controversy arising under or in connection this Agreement.
11. ENTIRE AGREEMENT. This Agreement sets forth the entire understanding of
the parties with respect to its subject matter and supersedes all prior written
or oral agreements or understandings with respect to the subject matter.
In witness whereof, the parties have executed this agreement as of the day
and year first above written.
MIDDLESEX WATER COMPANY
By: /s/ J. Xxxxxxx Xxxxxxxx
-----------------------------------
Chairman of the Board and President
ATTEST:
/s/ Xxxxxx X. Xxxxxxxx
----------------------
Xxxxxx X. Xxxxxxxx
Vice President
Secretary and Treasurer
/s/ A. Xxxxx X'Xxxxxx
---------------------------
A. Xxxxx X'Xxxxxx
EXHIBIT 10.15(d)
CHANGE IN CONTROL TERMINATION AGREEMENT
This Change in Control Termination Agreement (the "Agreement") is entered
into on April 7 1999, between Middlesex Water Company, a New Jersey corporation,
with its principal place of business located at 0000 Xxxxxx Xxxx, X.X. Xxx 0000,
Xxxxxx, Xxx Xxxxxx 00000-0000, (the "Company"), and A. Xxxxxx X. Xxxxxxxx,
residing at 00 Xxxxxxxxxxx Xxxxx, Xxxxxxxx, Xxx Xxxxxx 00000.
RECITALS
A. The Company considers it essential to the best interests of its
stockholders to xxxxxx the continuous employment of key management personnel. In
this connection, the Board of Directors of the Company (the "Board") recognizes
that, as is the case with many publicly held Companies, the possibility of a
Change In Control may exist. This possibility, and the uncertainty and questions
that it may raise among management, may result in the departure or distraction
of management personnel to the detriment of the Company and its stockholders.
B. The Board has determined that appropriate steps should be taken to
reinforce and encourage the continued attention and dedication of members of the
Company's management, including yourself, to the assigned duties without
distraction in the face of potentially disturbing circumstances arising from the
possibility of a Change In Control of the Company.
C. To induce you to remain in the employ of the Company, and in
consideration of your agreement set forth below, the Company agrees that you
shall receive the severance benefits set forth in this Agreement in the event
your employment with the Company is terminated or "constructively terminated" as
defined herein in connection with a "Change In Control of the Company" (as
defined in Section 2 below) under the circumstances described below. This
Agreement is meant to supersede any other specific written agreements that may
have been entered into between yourself and the Company concerning termination
of employment.
Therefore, in consideration of your continued employment and the parties'
agreement to be bound by the terms contained in this Agreement, the parties
agree as follows:
1. TERM OF AGREEMENT. This Agreement shall commence as of April 8, 1999 and
shall continue in effect through December 31, 2001. However, commencing on
December 31, 2001, and each December 31 afterwards, the term of this Agreement
shall automatically be extended for 1 additional year unless, no later than the
preceding November 1, the Company shall have given notice that it does not wish
to extend this Agreement. Notwithstanding the foregoing, if a Change In Control
of the Company shall be proposed to occur or have occurred during the original
or any extended term of this Agreement, this Agreement shall continue in effect
for a period of three years beyond the month in which the Change In Control
occurs. Notwithstanding the foregoing, and provided no Change of Control shall
have occurred, this Agreement shall automatically terminate on the earlier to
occur of (i) your termination of employment with the Company, or (ii) the
Company's furnishing you with notice of termination, irrespective of the
effective date of the termination.
2. CHANGE IN CONTROL. No benefits shall be payable under this Agreement
unless there shall have been a Change In Control of the Company, as set forth
below. For purposes of this Agreement, a "Change In Control" of the Company
shall be deemed to occur if any party or group acquires beneficial ownership of
20 percent or more of the voting shares of the Company; or if shareholder
approval is required for a transaction involving the acquisition of the Company
through the purchase or exchange of the stock or assets of the Company by merger
or otherwise; or if one-third or more of the Board elected in a 12-month period
or less are so elected without the approval of a majority of the Board as
constituted at the beginning of such period; or a liquidation or dissolution of
Company.
3. TERMINATION FOLLOWING CHANGE IN CONTROL. If any of the events described
in Section 2 above constituting a Change In Control of the Company shall have
occurred, you shall be entitled to the benefits provided in subsection 4.3 below
on the subsequent termination or "Constructive Termination" of your employment
during the term of this Agreement, unless the termination is (A) because of your
death, Disability or Retirement, (B) by the Company for Cause, or (C) by you
other than for Good Reason.
3.1 DISABILITY; RETIREMENT. If, as a result of your incapacity due to
physical or mental illness, you shall have been absent from the full-time
performance of your duties with the Company for 6 consecutive months, and within
30 days after written notice of termination is given you shall not have returned
to the full-time performance of your duties, your employment may be terminated
for "Disability." Termination by the Company or you of your employment based on
"Retirement" shall mean termination in accordance with the Company's retirement
policy, including early retirement, generally applicable to its salaried
employees or in accordance with any retirement arrangement established with your
consent with respect to you.
3.2 CAUSE. Termination by the Company of your employment for "Cause"
shall mean termination on:
3.2.1 the willful and continued failure by you to
substantially perform your duties with the Company
as such employment was performed by you prior to
the Change of Control (other than any such failure
resulting from your incapacity due to physical or
mental illness or any such actual or anticipated
failure after the issuance by you of a Notice of
Termination for Good Reason as defined in
Subsections 3.4 and 3.3, respectively) after a
written demand for substantial performance is
delivered to you by the Board, which demand
specifically identifies the manner in which the
Board believes that you have not substantially
performed your duties; or
3.2.2 the willful act by you in conduct that is
demonstrably and materially injurious to the
Company, and which the Board deems to cause or
will cause substantial economic damage to the
Company or injury to the business reputation of
the Company, monetarily or otherwise. For purposes
of this Subsection, no act, or failure to act, on
your part shall be deemed "willful" unless done,
or omitted to be done, by you not in good faith
and without a reasonable belief that your action
or omission was in the best interest of the
Company. Notwithstanding the foregoing, you shall
not be deemed to have been terminated for Cause
unless and until there shall have been delivered
to you a copy of a resolution duly adopted by the
affirmative vote of not less than three-quarters
of the entire membership of the Board at a meeting
of the Board called and held for such purpose
(after reasonable notice to you and an opportunity
for you, together with your counsel, to be heard
before the Board), finding that in the good faith
opinion of the Board you were guilty of conduct
set forth above in clauses 3.2.1 or 3.2.2 of the
first sentence of this Subsection and specifying
the particulars in detail.
3.3 GOOD REASON. You shall be entitled to terminate your employment
for Good Reason. For purposes of this Agreement, "Good Reason" shall mean,
without your express written consent, the occurrence in connection with a Change
In Control of the Company of any of the following circumstances unless, in the
case of paragraphs 3.3.1, 3.3.5, 3.3.6, 3.3.7, or 3.3.8, the circumstances are
fully corrected prior to the Date of Termination specified in the Notice of
Termination, as defined in Subsections 3.5 and 3.4, respectively, given in
respect of them. If you have Good Reason for your termination you shall be
considered to have been "Constructively Terminated" by the Company:
3.3.1 the assignment to you of any duties inconsistent
with your status and position (i) prior to the
Change In Control where such change is a direct
result of any pending Change in Control; or (ii)
as such status exists immediately prior to the
Change In Control of the Company, or (iii) a
substantial adverse alteration in the nature or
status of your responsibilities from those in
effect immediately prior to the Change In Control
of the Company whichever is applicable;
3.3.2 a reduction by the Company in your annual base
salary as in effect on this date or as the same
may be increased from time to time irrespective of
future Company policies including any
across-the-board salary reductions similarly
affecting all key employees of the Company;
3.3.3 your relocation, without your consent, to a
location not within twenty five (25) miles of your
present office or job location, except for
required travel on the Company's business to an
extent substantially consistent with your present
business travel obligations;
3.3.4 the failure by the Company, without your consent,
to pay to you any part of your current
compensation, or to pay to you any part of an
installment of deferred compensation under any
deferred compensation program of the Company,
within fourteen (14) days of the date the
compensation is due;
3.3.5 the failure by the Company to continue in effect
any bonus to which you were entitled, or any
compensation plan in which you participate (i)
prior to the Change in Control where such change
is a direct result of any pending Change In
Control; or (ii) immediately prior to the Change
In Control of the Company that is material to your
total compensation, including but not limited to
the Company's Restricted Stock Plan, 401(k) Plan,
and Benefit Plans, or any substitute plans adopted
prior to the Change In Control of the Company,
unless an equitable arrangement (embodied in an
ongoing substitute or alternative plan) has been
made with respect to the plan, or the failure by
the Company to continue your participation in it
(or in such substitute or alternative plan) on a
basis not materially less favorable, both in terms
of the amount of benefits provided and the level
of your participation relative to other
participants, as existed at the time of the Change
In Control;
3.3.6 the failure by the Company to continue to provide
you with (i) benefits substantially similar to
those enjoyed by you under any of the Company's
life insurance, medical, health and accident, or
disability plans in which you were participating
at the time of the Change In Control of the
Company was in effect for the employees of the
Company generally at the time of the Change In
Control, (ii) the failure to continue to provide
you with a Company automobile or allowance in lieu
of it at the time of the Change In Control of the
Company, (iii) the taking of any action by the
Company that would directly or indirectly
materially reduce any of such benefits or deprive
you of any material fringe benefit enjoyed by you
at the time of the Change In Control of the
Company, or (iv) the failure by the Company to
provide you with the number of paid vacation days
to which you are entitled on the basis of years of
service with the Company in accordance with the
Company's normal vacation policy in effect at the
time of the Change In Control of the Company;
3.3.7 the failure of the Company to obtain a
satisfactory agreement from any successor to
assume and agree to perform this Agreement, as
contemplated in Section 5 of this Agreement; or
3.3.8 any purported termination of your employment that
is not effected pursuant to a Notice of
Termination satisfying the requirements of
Subsection 3.4 below (and, if applicable, the
requirements of Subsection 3.2 above); for
purposes of this Agreement, no such purported
termination shall be effective.
Your rights to terminate your employment pursuant to this
Subsection shall not be affected by your incapacity due to physical or mental
illness. Your continued employment shall not constitute consent to, or a waiver
of rights with respect to, any circumstance constituting Good Reason under this
Agreement. In the event you deliver Notice of Termination based on circumstances
set forth in Paragraphs 3.3.1, 3.3.5, 3.3.6, 3.3.7, or 3.3.8 above, which are
fully corrected prior to the Date of Termination set forth in your Notice of
Termination, the Notice of Termination shall be deemed withdrawn and of no
further force or effect.
3.4 NOTICE OF TERMINATION. Any purported termination of your
employment by the Company or by you shall be communicated by written Notice of
Termination to the other party to this Agreement in accordance with Section 6 of
this Agreement. For purposes of this Agreement, a "Notice of Termination" shall
mean a notice that shall indicate the specific termination provision in this
Agreement relied on, and shall set forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of your employment
under the provision so indicated.
3.5 DATE OF TERMINATION, ETC. "Date of Termination" shall mean (A) if
your employment is terminated for Disability, 30 days after Notice of
Termination is given (provided that you shall not have returned to the full-time
performance of your duties during such 30-day period), and (B) if your
employment is terminated pursuant to Subsection 3.2 or 3.3 above or for any
other reason (other than Disability), the date specified in the Notice of
Termination (which, in the case of a termination pursuant to Subsection 3.2
above shall not be less than 30 days, and in the case of a termination pursuant
to Subsection 3.3 above shall not be less than 15 nor more than 60 days,
respectively, from the date the Notice of Termination is given). However, if
within 15 days after any Notice of Termination is given, or, if later, prior to
the Date of Termination (as determined without regard to this provision), the
party receiving the Notice of Termination notifies the other party that a
dispute exists concerning the termination, then the Date of Termination shall be
the date on which the dispute is finally determined, either by mutual written
agreement of the parties, by a binding arbitration award, or by a final
judgment, order, or decree of a court of competent jurisdiction (which is not
appealable or with respect to which the time for appeal has expired and no
appeal has been perfected). The Date of Termination shall be extended by a
notice of dispute only if the notice is given in good faith and the party giving
the notice pursues the resolution of the dispute with reasonable diligence.
Notwithstanding the pendency of any such dispute, the Company will continue to
pay you your full compensation in effect when the notice giving rise to the
dispute was given (including, but not limited to, base salary) and continue you
as a participant in all compensation, benefit, and insurance plans in which you
were participating when the notice giving rise to the dispute was given, until
the dispute is finally resolved in accordance with this Subsection. Amounts paid
under this Subsection are in addition to all other amounts due under this
Agreement and shall not be offset against or reduce any other amounts due under
this Agreement except to the extent otherwise provided in subsection 4.4.
4. COMPENSATION ON TERMINATION OR DURING DISABILITY. Following a Change In
Control of the Company, as defined by Section 2, on termination of your
employment or during a period of disability you shall be entitled to the
following benefits:
4.1 During any period that you fail to perform your full-time duties
with the Company as a result of incapacity due to physical or mental illness,
you shall continue to receive your base salary at the rate in effect at the
commencement of any such period, together with all amounts payable to you under
any compensation plan of the Company during the period, until this Agreement is
terminated pursuant to section 3.1 above. Thereafter, or in the event your
employment shall be terminated by the Company or by you for Retirement, or by
reason of your death, your benefits shall be determined under the Company's
retirement, insurance, and other compensation programs then in effect in
accordance with the terms of those programs.
4.2 If your employment shall be terminated by the Company for Cause or
by you other than for Good Reason, Disability, death, or Retirement, the Company
shall pay you your full base salary through the Date of Termination at the rate
in effect at the time Notice of Termination is given, plus all other amounts and
benefits to which you are entitled under any compensation plan of the Company at
the time the payments are due. The Company shall have no obligations to you
under this Agreement.
4.3 If your employment by the Company shall be terminated (a) by the
Company other than for Cause, Retirement or Disability, or (b) by you for Good
Reason, then you shall be entitled to the benefits provided below:
4.3.1 The Company shall pay you your full salary through
the Date of Termination at the rate in effect at
the time notice of Termination is given, plus all
other amounts and benefits to which you are
entitled under any compensation plan of the
Company, at the time the payments are due, except
as otherwise provided below.
4.3.2 In lieu of any further salary payments to you for
periods subsequent to the Date of Termination, the
Company shall pay to you, as severance pay the
following: (i) a lump sum severance payment equal
to three (3) times the average of your
Compensation for the five (5) years prior to the
occurrence of the circumstance giving rise to the
notice of Termination, plus (ii) the amounts in
the forms set forth in paragraphs 4.3.3, 4.3.4 and
4.3.5 (the "Severance Payments"). In addition to
the Severance Payments, the Company shall pay to
you an additional amount equal to the amount of
the Excise Tax, if any, that is due or determined
to be due under Section 4999 of the Internal
Revenue Code of 1986, as amended, resulting from
the Severance Payments or any other payments under
this Agreement or any other agreement between you
and the Company and an amount sufficient to pay
the taxes on any such Excise Taxes (the
"Gross-up"). For purposes of this Agreement,
"Compensation" shall mean the aggregate
remuneration paid by the Company to you during a
calendar year, including bonuses, awards under the
Company's Restricted Stock Plan, benefits under
employee benefit plans, automobile allowances or
any fees paid to you as remuneration for serving
as a Director of the Company.
4.3.3 The Company shall continue coverage for you and
your dependents under any health or welfare
benefit plan under which you and your dependents
were participating prior to THE CHANGE IN CONTROL
FOR A PERIOD ENDING ON THE EARLIER to occur of (i)
the date you become covered by a new employer's
health and welfare benefit plan, (ii) the date you
become covered by Medicare, or (iii) the date
which is thirty-six (36) months from the date of
Termination. The coverage for your dependents
shall end earlier than (i), (ii) or (iii) if
required by the health or welfare benefit plan due
to age eligibility.
4.3.4 The Company shall pay to you any deferred
compensation, including, but not limited to
deferred bonuses, allocated or credited to you or
your account as of the Date of Termination.
4.3.5 Outstanding stock options or Restricted Stock
grants, if any, granted to you under the Company's
Stock Plans which are not vested on Termination
shall immediately vest.
4.3.6 Where you shall prevail in any such action, the
Company shall also pay to you all legal and
accounting fees and expenses incurred by you as a
result of the termination (including all such fees
and expenses incurred by you as a result of the
termination (including all such fees and expenses,
if any, incurred in contesting or disputing any
termination or in seeking to obtain or enforce any
right or benefit provided by this Agreement or in
connection with any tax audit or proceeding to the
extent attributable to the application of Code
Section 4999 to any payment or benefit provided
under this Agreement) or any other agreement with
the Company.
4.3.7 The amount of Severance Payments and any Gross-up
due to you under this or any other relevant
agreement with the Company shall be determined by
a third party agreed to by you and the Company. If
you cannot agree on a third party, then both third
parties shall determine the amounts due under this
Agreement. If the third parties do not agree on
the amount to be paid to you, then either party
may submit the calculation of the amounts which
are in dispute to Arbitration in accordance with
this Agreement. The payments provided for in
Paragraphs 4.3.2, 4.3.4 AND 4.3.5 ABOVE, SHALL BE
MADE NO LATER THAN THE THIRTIETH (30TH) day
following the Date of Termination. However, if the
amounts of the payments cannot be finally
determined on or before that day, the Company
shall pay to you on that day an estimate, as
determined in good faith by the Company, of the
minimum amount of such payments and shall pay the
remainder of those payments (together with
interest at the rate provided in Section
1274(b)(2)(B) of the Code) as soon as the amount
can be determined but in no event later than the
30th day after the Date of Termination. In the
event that the amount of the estimate payments
exceeds the amount subsequently determined to have
been due, the excess shall constitute a loan by
the Company to you payable on the 30th day after
demand by the Company (together with interest at
the rate provided in Section 1274(b)(2)(B) of the
Code).
4.4 You shall not be required to mitigate the amount of any payment
provided for in this Section 4 by seeking other employment or otherwise, nor
shall the amount of any payment or benefit provided for in this Section 4 be
reduced by any compensation earned by you as the result of employment by another
employer, by retirement benefits, by offset against any amount claimed to be
owed by you to the Company, or otherwise except as specifically provided in this
Section 4.
4.5 In addition to all other amounts payable to you under this Section
4, you shall be entitled to receive all qualified benefits payable to you under
the Company's 401(k) Plan, Defined Benefit Plan and any other plan or agreement
relating to retirement benefits.
5. SUCCESSORS; BINDING AGREEMENT.
5.1 The Company will require any successor (whether direct or
indirect, by purchase, merger, consolidation, or otherwise) to all or
substantially all of the business and/or assets of the Company 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. Failure of the Company to obtain the assumption and agreement
prior to the effectiveness of any succession shall be a breach of this agreement
and shall entitle you to compensation from the Company in the same amount and on
the same terms as you would have been entitled to under this Agreement if you
had terminated your employment for Good Reason following a Change In Control of
the Company, except that for purposes of implementing the foregoing, the date on
which any such succession becomes effective shall be deemed the Date of
Termination.
5.2 This Agreement shall inure to the benefit of and be enforceable by
your personal or legal representatives, executors, administrators, heirs,
distributees, and legatees. If you should die while any amount would still be
payable to you if you had continued to live, all such amounts, unless otherwise
provided in this Agreement, shall be paid in accordance with the terms of this
Agreement to your legatee or other designee or, if there is no such designee, to
your estate.
6. NOTICE. For the purpose of this Agreement, all notices and other
communications provided for in the Agreement shall be in writing and shall be
deemed to have been duly given when delivered or mailed by United States
registered or certified mail, return receipt requested, postage prepaid,
addressed to the respective addresses set forth on the first page of this
Agreement, provided that all notices to the Company shall be directed to the
attention of the Board with a copy to the Secretary of the Company, or to such
other address as either party may have furnished to the other in writing in
accordance this Agreement, except that notice of a change of address shall be
effective only on receipt.
7. MISCELLANEOUS.
7.1 No provision of this Agreement may be modified, waived, or
discharged unless the waiver, modification, or discharge is agreed to in writing
and signed by you and such officer as may be specifically designated by the
Board.
7.2 No waiver by either party to this Agreement at any time of any
breach by the other party of, or compliance with, any condition or provision of
this Agreement to be performed by such other party shall be deemed a waiver of
similar or dissimilar provisions or conditions at the same or at any prior or
subsequent time.
7.3 No agreements or representations, oral or otherwise, express or
implied, with respect to the subject matter of this Agreement have been made by
either party that are not expressly set forth in this Agreement.
7.4 Nothing in this Agreement is intended to reduce any benefits
payable to you under any other agreement you may have with the Company or in any
Company plan in which you may participate.
7.5 The validity, interpretation, construction, and performance of
this Agreement shall be governed by the law of New Jersey without reference to
its conflict of laws principals.
7.6 All references to sections of the Exchange Act or the Code shall
be deemed also to refer to any successor provisions to such sections. Any
payments provided for shall be paid net of any applicable withholding or
deduction required under federal, state or local law.
7.7 The obligations of the Company under Section 4 shall survive the
expiration of the term of this Agreement.
8. VALIDITY. The validity or enforceability of any provision of this
Agreement shall not affect the validity or unenforceability of any other
provision of this Agreement, which shall remain in full force and effect.
9. COUNTERPARTS. This Agreement may be executed in several counterparts,
each of which shall be deemed to be an original but all of which together will
constitute one and the same instrument.
10. ARBITRATION. Any dispute or controversy arising under or in connection
with this Agreement shall be settled exclusively by arbitration in New Jersey in
accordance with the rules of the American Arbitration Association then in
effect. Judgment may be entered on the arbitrator's award in any court having
jurisdiction. However, you shall be entitled to seek specific performance of
your right to be paid until the Date of Termination during the pendency of any
dispute or controversy arising under or in connection this Agreement.
11. ENTIRE AGREEMENT. This Agreement sets forth the entire understanding of
the parties with respect to its subject matter and supersedes all prior written
or oral agreements or understandings with respect to the subject matter.
In witness whereof, the parties have executed this agreement as of the day
and year first above written.
MIDDLESEX WATER COMPANY
By:/s/ J. Xxxxxxx Xxxxxxxx
-----------------------------------
J. Xxxxxxx Xxxxxxxx
Chairman of the Board and President
ATTEST:
/s/ Xxxxxx X. Xxxxxxxx
----------------------
Xxxxxx X. Xxxxxxxx
Vice President and General Counsel
/s/ Xxxxxx X. Xxxxxxxx
------------------------------
Xxxxxx X. Xxxxxxxx
Exhibit 10.15(e)
CHANGE IN CONTROL TERMINATION AGREEMENT
This Change in Control Termination Agreement (the "Agreement") is entered
into on April 7 1999, between Middlesex Water Company, a New Jersey corporation,
with its principal place of business located at 0000 Xxxxxx Xxxx, X.X. Xxx 0000,
Xxxxxx, Xxx Xxxxxx 00000-0000, (the "Company"), and Xxxxxxx X. Xxxxx, residing
at 0 Xxxx Xxxxx Xxxx, Xxxxxxxxxx, Xxx Xxxxxx 00000.
RECITALS
A. The Company considers it essential to the best interests of its
stockholders to xxxxxx the continuous employment of key management personnel. In
this connection, the Board of Directors of the Company (the "Board") recognizes
that, as is the case with many publicly held Companies, the possibility of a
Change In Control may exist. This possibility, and the uncertainty and questions
that it may raise among management, may result in the departure or distraction
of management personnel to the detriment of the Company and its stockholders.
B. The Board has determined that appropriate steps should be taken to
reinforce and encourage the continued attention and dedication of members of the
Company's management, including yourself, to the assigned duties without
distraction in the face of potentially disturbing circumstances arising from the
possibility of a Change In Control of the Company.
C. To induce you to remain in the employ of the Company, and in
consideration of your agreement set forth below, the Company agrees that you
shall receive the severance benefits set forth in this Agreement in the event
your employment with the Company is terminated or "constructively terminated" as
defined herein in connection with a "Change In Control of the Company" (as
defined in Section 2 below) under the circumstances described below. This
Agreement is meant to supersede any other specific written agreements that may
have been entered into between yourself and the Company concerning termination
of employment.
Therefore, in consideration of your continued employment and the
parties' agreement to be bound by the terms contained in this Agreement, the
parties agree as follows:
1. TERM OF AGREEMENT. This Agreement shall commence as of April 8, 1999 and
shall continue in effect through December 31, 2001. However, commencing on
December 31, 2001, and each December 31 afterwards, the term of this Agreement
shall automatically be extended for 1 additional year unless, no later than the
preceding November 1, the Company shall have given notice that it does not wish
to extend this Agreement. Notwithstanding the foregoing, if a Change In Control
of the Company shall be proposed to occur or have occurred during the original
or any extended term of this Agreement, this Agreement shall continue in effect
for a period of three years beyond the month in which the Change In Control
occurs. Notwithstanding the foregoing, and provided no Change of Control shall
have occurred, this Agreement shall automatically terminate on the earlier to
occur of (i) your termination of employment with the Company, or (ii) the
Company's furnishing you with notice of termination, irrespective of the
effective date of the termination.
2. CHANGE IN CONTROL. No benefits shall be payable under this Agreement
unless there shall have been a Change In Control of the Company, as set forth
below. For purposes of this Agreement, a "Change In Control" of the Company
shall be deemed to occur if any party or group acquires beneficial ownership of
20 percent or more of the voting shares of the Company; or if shareholder
approval is required for a transaction involving the acquisition of the Company
through the purchase or exchange of the stock or assets of the Company by merger
or otherwise; or if one-third or more of the Board elected in a 12-month period
or less are so elected without the approval of a majority of the Board as
constituted at the beginning of such period; or a liquidation or dissolution of
Company.
3. TERMINATION FOLLOWING CHANGE IN CONTROL. If any of the events described
in Section 2 above constituting a Change In Control of the Company shall have
occurred, you shall be entitled to the benefits provided in subsection 4.3 below
on the subsequent termination or "Constructive Termination" of your employment
during the term of this Agreement, unless the termination is (A) because of your
death, Disability or Retirement, (B) by the Company for Cause, or (C) by you
other than for Good Reason.
3.1 DISABILITY; RETIREMENT. If, as a result of your incapacity due to
physical or mental illness, you shall have been absent from the full-time
performance of your duties with the Company for 6 consecutive months, and within
30 days after written notice of termination is given you shall not have returned
to the full-time performance of your duties, your employment may be terminated
for "Disability." Termination by the Company or you of your employment based on
"Retirement" shall mean termination in accordance with the Company's retirement
policy, including early retirement, generally applicable to its salaried
employees or in accordance with any retirement arrangement established with your
consent with respect to you.
3.2 CAUSE. Termination by the Company of your employment for "Cause"
shall mean termination on:
3.2.1 the willful and continued failure by you to
substantially perform your duties with the Company
as such employment was performed by you prior to
the Change of Control (other than any such failure
resulting from your incapacity due to physical or
mental illness or any such actual or anticipated
failure after the issuance by you of a Notice of
Termination for Good Reason as defined in
Subsections 3.4 and 3.3, respectively) after a
written demand for substantial performance is
delivered to you by the Board, which demand
specifically identifies the manner in which the
Board believes that you have not substantially
performed your duties; or
3.2.2 the willful act by you in conduct that is
demonstrably and materially injurious to the
Company, and which the Board deems to cause or
will cause substantial economic damage to the
Company or injury to the business reputation of
the Company, monetarily or otherwise. For purposes
of this Subsection, no act, or failure to act, on
your part shall be deemed "willful" unless done,
or omitted to be done, by you not in good faith
and without a reasonable belief that your action
or omission was in the best interest of the
Company. Notwithstanding the foregoing, you shall
not be deemed to have been terminated for Cause
unless and until there shall have been delivered
to you a copy of a resolution duly adopted by the
affirmative vote of not less than three-quarters
of the entire membership of the Board at a meeting
of the Board called and held for such purpose
(after reasonable notice to you and an opportunity
for you, together with your counsel, to be heard
before the Board), finding that in the good faith
opinion of the Board you were guilty of conduct
set forth above in clauses 3.2.1 or 3.2.2 of the
first sentence of this Subsection and specifying
the particulars in detail.
3.3 GOOD REASON. You shall be entitled to terminate your employment
for Good Reason. For purposes of this Agreement, "Good Reason" shall mean,
without your express written consent, the occurrence in connection with a Change
In Control of the Company of any of the following circumstances unless, in the
case of paragraphs 3.3.1, 3.3.5, 3.3.6, 3.3.7, or 3.3.8, the circumstances are
fully corrected prior to the Date of Termination specified in the Notice of
Termination, as defined in Subsections 3.5 and 3.4, respectively, given in
respect of them. If you have Good Reason for your termination you shall be
considered to have been "Constructively Terminated" by the Company:
3.3.1 the assignment to you of any duties inconsistent
with your status and position (i) prior to the
Change In Control where such change is a direct
result of any pending Change in Control; or (ii)
as such status exists immediately prior to the
Change In Control of the Company, or (iii) a
substantial adverse alteration in the nature or
status of your responsibilities from those in
effect immediately prior to the Change In Control
of the Company whichever is applicable;
3.3.2 a reduction by the Company in your annual base
salary as in effect on this date or as the same
may be increased from time to time irrespective of
future Company policies including any
across-the-board salary reductions similarly
affecting all key employees of the Company;
3.3.3 your relocation, without your consent, to a
location not within twenty five (25) miles of your
present office or job location, except for
required travel on the Company's business to an
extent substantially consistent with your present
business travel obligations;
3.3.4 the failure by the Company, without your consent,
to pay to you any part of your current
compensation, or to pay to you any part of an
installment of deferred compensation under any
deferred compensation program of the Company,
within fourteen (14) days of the date the
compensation is due;
3.3.5 the failure by the Company to continue in effect
any bonus to which you were entitled, or any
compensation plan in which you participate (i)
prior to the Change in Control where such change
is a direct result of any pending Change In
Control; or (ii) immediately prior to the Change
In Control of the Company that is material to your
total compensation, including but not limited to
the Company's Restricted Stock Plan, 401(k) Plan,
and Benefit Plans, or any substitute plans adopted
prior to the Change In Control of the Company,
unless an equitable arrangement (embodied in an
ongoing substitute or alternative plan) has been
made with respect to the plan, or the failure by
the Company to continue your participation in it
(or in such substitute or alternative plan) on a
basis not materially less favorable, both in terms
of the amount of benefits provided and the level
of your participation relative to other
participants, as existed at the time of the Change
In Control;
3.3.6 the failure by the Company to continue to provide
you with (i) benefits substantially similar to
those enjoyed by you under any of the Company's
life insurance, medical, health and accident, or
disability plans in which you were participating
at the time of the Change In Control of the
Company was in effect for the employees of the
Company generally at the time of the Change In
Control, (ii) the failure to continue to provide
you with a Company automobile or allowance in lieu
of it at the time of the Change In Control of the
Company, (iii) the taking of any action by the
Company that would directly or indirectly
materially reduce any of such benefits or deprive
you of any material fringe benefit enjoyed by you
at the time of the Change In Control of the
Company, or (iv) the failure by the Company to
provide you with the number of paid vacation days
to which you are entitled on the basis of years of
service with the Company in accordance with the
Company's normal vacation policy in effect at the
time of the Change In Control of the Company;
3.3.7 the failure of the Company to obtain a
satisfactory agreement from any successor to
assume and agree to perform this Agreement, as
contemplated in Section 5 of this Agreement; or
3.3.8 any purported termination of your employment that
is not effected pursuant to a Notice of
Termination satisfying the requirements of
Subsection 3.4 below (and, if applicable, the
requirements of Subsection 3.2 above); for
purposes of this Agreement, no such purported
termination shall be effective.
Your rights to terminate your employment pursuant to this
Subsection shall not be affected by your incapacity due to physical or mental
illness. Your continued employment shall not constitute consent to, or a waiver
of rights with respect to, any circumstance constituting Good Reason under this
Agreement. In the event you deliver Notice of Termination based on circumstances
set forth in Paragraphs 3.3.1, 3.3.5, 3.3.6, 3.3.7, or 3.3.8 above, which are
fully corrected prior to the Date of Termination set forth in your Notice of
Termination, the Notice of Termination shall be deemed withdrawn and of no
further force or effect.
3.4 NOTICE OF TERMINATION. Any purported termination of your
employment by the Company or by you shall be communicated by written Notice of
Termination to the other party to this Agreement in accordance with Section 6 of
this Agreement. For purposes of this Agreement, a "Notice of Termination" shall
mean a notice that shall indicate the specific termination provision in this
Agreement relied on, and shall set forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of your employment
under the provision so indicated.
3.5 DATE OF TERMINATION, ETC. "Date of Termination" shall mean (A) if
your employment is terminated for Disability, 30 days after Notice of
Termination is given (provided that you shall not have returned to the full-time
performance of your duties during such 30-day period), and (B) if your
employment is terminated pursuant to Subsection 3.2 or 3.3 above or for any
other reason (other than Disability), the date specified in the Notice of
Termination (which, in the case of a termination pursuant to Subsection 3.2
above shall not be less than 30 days, and in the case of a termination pursuant
to Subsection 3.3 above shall not be less than 15 nor more than 60 days,
respectively, from the date the Notice of Termination is given). However, if
within 15 days after any Notice of Termination is given, or, if later, prior to
the Date of Termination (as determined without regard to this provision), the
party receiving the Notice of Termination notifies the other party that a
dispute exists concerning the termination, then the Date of Termination shall be
the date on which the dispute is finally determined, either by mutual written
agreement of the parties, by a binding arbitration award, or by a final
judgment, order, or decree of a court of competent jurisdiction (which is not
appealable or with respect to which the time for appeal has expired and no
appeal has been perfected). The Date of Termination shall be extended by a
notice of dispute only if the notice is given in good faith and the party giving
the notice pursues the resolution of the dispute with reasonable diligence.
Notwithstanding the pendency of any such dispute, the Company will continue to
pay you your full compensation in effect when the notice giving rise to the
dispute was given (including, but not limited to, base salary) and continue you
as a participant in all compensation, benefit, and insurance plans in which you
were participating when the notice giving rise to the dispute was given, until
the dispute is finally resolved in accordance with this Subsection. Amounts paid
under this Subsection are in addition to all other amounts due under this
Agreement and shall not be offset against or reduce any other amounts due under
this Agreement except to the extent otherwise provided in subsection 4.4.
4. COMPENSATION ON TERMINATION OR DURING DISABILITY. Following a Change In
Control of the Company, as defined by Section 2, on termination of your
employment or during a period of disability you shall be entitled to the
following benefits:
4.1 During any period that you fail to perform your full-time duties
with the Company as a result of incapacity due to physical or mental illness,
you shall continue to receive your base salary at the rate in effect at the
commencement of any such period, together with all amounts payable to you under
any compensation plan of the Company during the period, until this Agreement is
terminated pursuant to section 3.1 above. Thereafter, or in the event your
employment shall be terminated by the Company or by you for Retirement, or by
reason of your death, your benefits shall be determined under the Company's
retirement, insurance, and other compensation programs then in effect in
accordance with the terms of those programs.
4.2 If your employment shall be terminated by the Company for Cause or
by you other than for Good Reason, Disability, death, or Retirement, the Company
shall pay you your full base salary through the Date of Termination at the rate
in effect at the time Notice of Termination is given, plus all other amounts and
benefits to which you are entitled under any compensation plan of the Company at
the time the payments are due. The Company shall have no obligations to you
under this Agreement.
4.3 If your employment by the Company shall be terminated (a) by the
Company other than for Cause, Retirement or Disability, or (b) by you for Good
ReaIson, then you shall be entitled to the benefits provided below:
4.3.1 The Company shall pay you your full salary through
the Date of Termination at the rate in effect at
the time notice of Termination is given, plus all
other amounts and benefits to which you are
entitled under any compensation plan of the
Company, at the time the payments are due, except
as otherwise provided below.
4.3.2 In lieu of any further salary payments to you for
periods subsequent to the Date of Termination, the
Company shall pay to you, as severance pay the
following: (i) a lump sum severance payment equal
to three (3) times the average of your
Compensation for the five (5) years prior to the
occurrence of the circumstance giving rise to the
notice of Termination, plus (ii) the amounts in
the forms set forth in paragraphs 4.3.3, 4.3.4 and
4.3.5 (the "Severance Payments"). In addition to
the Severance Payments, the Company shall pay to
you an additional amount equal to the amount of
the Excise Tax, if any, that is due or determined
to be due under Section 4999 of the Internal
Revenue Code of 1986, as amended, resulting from
the Severance Payments or any other payments under
this Agreement or any other agreement between you
and the Company and an amount sufficient to pay
the taxes on any such Excise Taxes (the
"Gross-up"). For purposes of this Agreement,
"Compensation" shall mean the aggregate
remuneration paid by the Company to you during a
calendar year, including bonuses, awards under the
Company's Restricted Stock Plan, benefits under
employee benefit plans, automobile allowances or
any fees paid to you as remuneration for serving
as a Director of the Company.
4.3.3 The Company shall continue coverage for you and
your dependents under any health or welfare
benefit plan under which you and your dependents
were participating prior to THE CHANGE IN CONTROL
FOR A PERIOD ENDING ON THE EARLIER to occur of (i)
the date you become covered by a new employer's
health and welfare benefit plan, (ii) the date you
become covered by Medicare, or (iii) the date
which is thirty-six (36) months from the date of
Termination. The coverage for your dependents
shall end earlier than (i), (ii) or (iii) if
required by the health or welfare benefit plan due
to age eligibility.
4.3.4 The Company shall pay to you any deferred
compensation, including, but not limited to
deferred bonuses, allocated or credited to you or
your account as of the Date of Termination.
4.3.5 Outstanding stock options or Restricted Stock
grants, if any, granted to you under the Company's
Stock Plans which are not vested on Termination
shall immediately vest.
4.3.6 Where you shall prevail in any such action, the
Company shall also pay to you all legal and
accounting fees and expenses incurred by you as a
result of the termination (including all such fees
and expenses incurred by you as a result of the
termination (including all such fees and expenses,
if any, incurred in contesting or disputing any
termination or in seeking to obtain or enforce any
right or benefit provided by this Agreement or in
connection with any tax audit or proceeding to the
extent attributable to the application of Code
Section 4999 to any payment or benefit provided
under this Agreement) or any other agreement with
the Company.
4.3.7 The amount of Severance Payments and any Gross-up
due to you under this or any other relevant
agreement with the Company shall be determined by
a third party agreed to by you and the Company. If
you cannot agree on a third party, then both third
parties shall determine the amounts due under this
Agreement. If the third parties do not agree on
the amount to be paid to you, then either party
may submit the calculation of the amounts which
are in dispute to Arbitration in accordance with
this Agreement. The payments provided for in
Paragraphs 4.3.2, 4.3.4 AND 4.3.5 ABOVE, SHALL BE
MADE NO LATER THAN THE THIRTIETH (30TH) day
following the Date of Termination. However, if the
amounts of the payments cannot be finally
determined on or before that day, the Company
shall pay to you on that day an estimate, as
determined in good faith by the Company, of the
minimum amount of such payments and shall pay the
remainder of those payments (together with
interest at the rate provided in Section
1274(b)(2)(B) of the Code) as soon as the amount
can be determined but in no event later than the
30th day after the Date of Termination. In the
event that the amount of the estimate payments
exceeds the amount subsequently determined to have
been due, the excess shall constitute a loan by
the Company to you payable on the 30th day after
demand by the Company (together with interest at
the rate provided in Section 1274(b)(2)(B) of the
Code).
4.4 You shall not be required to mitigate the amount of any payment
provided for in this Section 4 by seeking other employment or otherwise, nor
shall the amount of any payment or benefit provided for in this Section 4 be
reduced by any compensation earned by you as the result of employment by another
employer, by retirement benefits, by offset against any amount claimed to be
owed by you to the Company, or otherwise except as specifically provided in this
Section 4.
4.5 In addition to all other amounts payable to you under this Section
4, you shall be entitled to receive all qualified benefits payable to you under
the Company's 401(k) Plan, Defined Benefit Plan and any other plan or agreement
relating to retirement benefits.
5. SUCCESSORS; BINDING AGREEMENT.
5.1 The Company will require any successor (whether direct or
indirect, by purchase, merger, consolidation, or otherwise) to all or
substantially all of the business and/or assets of the Company 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. Failure of the Company to obtain the assumption and agreement
prior to the effectiveness of any succession shall be a breach of this agreement
and shall entitle you to compensation from the Company in the same amount and on
the same terms as you would have been entitled to under this Agreement if you
had terminated your employment for Good Reason following a Change In Control of
the Company, except that for purposes of implementing the foregoing, the date on
which any such succession becomes effective shall be deemed the Date of
Termination.
5.2 This Agreement shall inure to the benefit of and be enforceable by
your personal or legal representatives, executors, administrators, heirs,
distributees, and legatees. If you should die while any amount would still be
payable to you if you had continued to live, all such amounts, unless otherwise
provided in this Agreement, shall be paid in accordance with the terms of this
Agreement to your legatee or other designee or, if there is no such designee, to
your estate.
6. NOTICE. For the purpose of this Agreement, all notices and other
communications provided for in the Agreement shall be in writing and shall be
deemed to have been duly given when delivered or mailed by United States
registered or certified mail, return receipt requested, postage prepaid,
addressed to the respective addresses set forth on the first page of this
Agreement, provided that all notices to the Company shall be directed to the
attention of the Board with a copy to the Secretary of the Company, or to such
other address as either party may have furnished to the other in writing in
accordance this Agreement, except that notice of a change of address shall be
effective only on receipt.
7. MISCELLANEOUS.
7.1 No provision of this Agreement may be modified, waived, or
discharged unless the waiver, modification, or discharge is agreed to in writing
and signed by you and such officer as may be specifically designated by the
Board.
7.2 No waiver by either party to this Agreement at any time of any
breach by the other party of, or compliance with, any condition or provision of
this Agreement to be performed by such other party shall be deemed a waiver of
similar or dissimilar provisions or conditions at the same or at any prior or
subsequent time.
7.3 No agreements or representations, oral or otherwise, express or
implied, with respect to the subject matter of this Agreement have been made by
either party that are not expressly set forth in this Agreement.
7.4 Nothing in this Agreement is intended to reduce any benefits
payable to you under any other agreement you may have with the Company or in any
Company plan in which you may participate.
7.5 The validity, interpretation, construction, and performance of
this Agreement shall be governed by the law of New Jersey without reference to
its conflict of laws principals.
7.6 All references to sections of the Exchange Act or the Code shall
be deemed also to refer to any successor provisions to such sections. Any
payments provided for shall be paid net of any applicable withholding or
deduction required under federal, state or local law.
7.7 The obligations of the Company under Section 4 shall survive the
expiration of the term of this Agreement.
8. VALIDITY. The validity or enforceability of any provision of this
Agreement shall not affect the validity or unenforceability of any other
provision of this Agreement, which shall remain in full force and effect.
9. COUNTERPARTS. This Agreement may be executed in several counterparts,
each of which shall be deemed to be an original but all of which together will
constitute one and the same instrument.
10. ARBITRATION. Any dispute or controversy arising under or in connection
with this Agreement shall be settled exclusively by arbitration in New Jersey in
accordance with the rules of the American Arbitration Association then in
effect. Judgment may be entered on the arbitrator's award in any court having
jurisdiction. However, you shall be entitled to seek specific performance of
your right to be paid until the Date of Termination during the pendency of any
dispute or controversy arising under or in connection this Agreement.
11. ENTIRE AGREEMENT. This Agreement sets forth the entire understanding of
the parties with respect to its subject matter and supersedes all prior written
or oral agreements or understandings with respect to the subject matter.
In witness whereof, the parties have executed this agreement as of the day
and year first above written.
MIDDLESEX WATER COMPANY
By:/s/ J. Xxxxxxx Xxxxxxxx
----------------------------------------
J. Xxxxxxx Xxxxxxxx
Chairman of the Board and President
ATTEST:
/s/ Xxxxxx X. Xxxxxxxx
----------------------
Xxxxxx X. Xxxxxxxx
Vice President
Secretary and Treasurer
/s/ Xxxxxxx X. Xxxxx
---------------------------------
Xxxxxxx X. Xxxxx
Exhibit 10.15(f)
CHANGE IN CONTROL TERMINATION AGREEMENT
This Change in Control Termination Agreement (the "Agreement") is
entered into on April 7 1999, between Middlesex Water Company, a New Jersey
corporation, with its principal place of business located at 1500 Ronson Road,
P.O. Box 1500, Iselin, New Jersey 08830-0452, (the "Company"), and Xxxxxx X.
Xxxxxxxx, residing at 0 Xxxxxxxxxx Xxxxx, Xxxxxxxx, Xxx Xxxxxx 00000.
RECITALS
A. The Company considers it essential to the best interests of its
stockholders to xxxxxx the continuous employment of key management personnel. In
this connection, the Board of Directors of the Company (the "Board") recognizes
that, as is the case with many publicly held Companies, the possibility of a
Change In Control may exist. This possibility, and the uncertainty and questions
that it may raise among management, may result in the departure or distraction
of management personnel to the detriment of the Company and its stockholders.
B. The Board has determined that appropriate steps should be taken to
reinforce and encourage the continued attention and dedication of members of the
Company's management, including yourself, to the assigned duties without
distraction in the face of potentially disturbing circumstances arising from the
possibility of a Change In Control of the Company.
C. To induce you to remain in the employ of the Company, and in
consideration of your agreement set forth below, the Company agrees that you
shall receive the severance benefits set forth in this Agreement in the event
your employment with the Company is terminated or "constructively terminated" as
defined herein in connection with a "Change In Control of the Company" (as
defined in Section 2 below) under the circumstances described below. This
Agreement is meant to supersede any other specific written agreements that may
have been entered into between yourself and the Company concerning termination
of employment.
Therefore, in consideration of your continued employment and
the parties' agreement to be bound by the terms contained in this Agreement, the
parties agree as follows:
1. TERM OF AGREEMENT. This Agreement shall commence as of April 8, 1999 and
shall continue in effect through December 31, 2001. However, commencing on
December 31, 2001, and each December 31 afterwards, the term of this Agreement
shall automatically be extended for 1 additional year unless, no later than the
preceding November 1, the Company shall have given notice that it does not wish
to extend this Agreement. Notwithstanding the foregoing, if a Change In Control
of the Company shall be proposed to occur or have occurred during the original
or any extended term of this Agreement, this Agreement shall continue in effect
for a period of three years beyond the month in which the Change In Control
occurs. Notwithstanding the foregoing, and provided no Change of Control shall
have occurred, this Agreement shall automatically terminate on the earlier to
occur of (i) your termination of employment with the Company, or (ii) the
Company's furnishing you with notice of termination, irrespective of the
effective date of the termination.
2. CHANGE IN CONTROL. No benefits shall be payable under this Agreement
unless there shall have been a Change In Control of the Company, as set forth
below. For purposes of this Agreement, a "Change In Control" of the Company
shall be deemed to occur if any party or group acquires beneficial ownership of
20 percent or more of the voting shares of the Company; or if shareholder
approval is required for a transaction involving the acquisition of the Company
through the purchase or exchange of the stock or assets of the Company by merger
or otherwise; or if one-third or more of the Board elected in a 12-month period
or less are so elected without the approval of a majority of the Board as
constituted at the beginning of such period; or a liquidation or dissolution of
Company.
3. TERMINATION FOLLOWING CHANGE IN CONTROL. If any of the events described
in Section 2 above constituting a Change In Control of the Company shall have
occurred, you shall be entitled to the benefits provided in subsection 4.3 below
on the subsequent termination or "Constructive Termination" of your employment
during the term of this Agreement, unless the termination is (A) because of your
death, Disability or Retirement, (B) by the Company for Cause, or (C) by you
other than for Good Reason.
3.1 DISABILITY; RETIREMENT. If, as a result of your incapacity due to
physical or mental illness, you shall have been absent from the full-time
performance of your duties with the Company for 6 consecutive months, and within
30 days after written notice of termination is given you shall not have returned
to the full-time performance of your duties, your employment may be terminated
for "Disability." Termination by the Company or you of your employment based on
"Retirement" shall mean termination in accordance with the Company's retirement
policy, including early retirement, generally applicable to its salaried
employees or in accordance with any retirement arrangement established with your
consent with respect to you.
3.2 CAUSE. Termination by the Company of your employment for "Cause"
shall mean termination on:
3.2.1 the willful and continued failure by you to
substantially perform your duties with the Company
as such employment was performed by you prior to
the Change of Control (other than any such failure
resulting from your incapacity due to physical or
mental illness or any such actual or anticipated
failure after the issuance by you of a Notice of
Termination for Good Reason as defined in
Subsections 3.4 and 3.3, respectively) after a
written demand for substantial performance is
delivered to you by the Board, which demand
specifically identifies the manner in which the
Board believes that you have not substantially
performed your duties; or
3.2.2 the willful act by you in conduct that is
demonstrably and materially injurious to the
Company, and which the Board deems to cause or
will cause substantial economic damage to the
Company or injury to the business reputation of
the Company, monetarily or otherwise. For purposes
of this Subsection, no act, or failure to act, on
your part shall be deemed "willful" unless done,
or omitted to be done, by you not in good faith
and without a reasonable belief that your action
or omission was in the best interest of the
Company. Notwithstanding the foregoing, you shall
not be deemed to have been terminated for Cause
unless and until there shall have been delivered
to you a copy of a resolution duly adopted by the
affirmative vote of not less than three-quarters
of the entire membership of the Board at a meeting
of the Board called and held for such purpose
(after reasonable notice to you and an opportunity
for you, together with your counsel, to be heard
before the Board), finding that in the good faith
opinion of the Board you were guilty of conduct
set forth above in clauses 3.2.1 or 3.2.2 of the
first sentence of this Subsection and specifying
the particulars in detail.
3.3 GOOD REASON. You shall be entitled to terminate your employment
for Good Reason. For purposes of this Agreement, "Good Reason" shall mean,
without your express written consent, the occurrence in connection with a Change
In Control of the Company of any of the following circumstances unless, in the
case of paragraphs 3.3.1, 3.3.5, 3.3.6, 3.3.7, or 3.3.8, the circumstances are
fully corrected prior to the Date of Termination specified in the Notice of
Termination, as defined in Subsections 3.5 and 3.4, respectively, given in
respect of them. If you have Good Reason for your termination you shall be
considered to have been "Constructively Terminated" by the Company:
3.3.1 the assignment to you of any duties inconsistent
with your status and position (i) prior to the
Change In Control where such change is a direct
result of any pending Change in Control; or (ii)
as such status exists immediately prior to the
Change In Control of the Company, or (iii) a
substantial adverse alteration in the nature or
status of your responsibilities from those in
effect immediately prior to the Change In Control
of the Company whichever is applicable;
3.3.2 a reduction by the Company in your annual base
salary as in effect on this date or as the same
may be increased from time to time irrespective of
future Company policies including any
across-the-board salary reductions similarly
affecting all key employees of the Company;
3.3.3 your relocation, without your consent, to a
location not within twenty five (25) miles of your
present office or job location, except for
required travel on the Company's business to an
extent substantially consistent with your present
business travel obligations;
3.3.4 the failure by the Company, without your consent,
to pay to you any part of your current
compensation, or to pay to you any part of an
installment of deferred compensation under any
deferred compensation program of the Company,
within fourteen (14) days of the date the
compensation is due;
3.3.5 the failure by the Company to continue in effect
any bonus to which you were entitled, or any
compensation plan in which you participate (i)
prior to the Change in Control where such change
is a direct result of any pending Change In
Control; or (ii) immediately prior to the Change
In Control of the Company that is material to your
total compensation, including but not limited to
the Company's Restricted Stock Plan, 401(k) Plan,
and Benefit Plans, or any substitute plans adopted
prior to the Change In Control of the Company,
unless an equitable arrangement (embodied in an
ongoing substitute or alternative plan) has been
made with respect to the plan, or the failure by
the Company to continue your participation in it
(or in such substitute or alternative plan) on a
basis not materially less favorable, both in terms
of the amount of benefits provided and the level
of your participation relative to other
participants, as existed at the time of the Change
In Control;
3.3.6 the failure by the Company to continue to provide
you with (i) benefits substantially similar to
those enjoyed by you under any of the Company's
life insurance, medical, health and accident, or
disability plans in which you were participating
at the time of the Change In Control of the
Company was in effect for the employees of the
Company generally at the time of the Change In
Control, (ii) the failure to continue to provide
you with a Company automobile or allowance in lieu
of it at the time of the Change In Control of the
Company, (iii) the taking of any action by the
Company that would directly or indirectly
materially reduce any of such benefits or deprive
you of any material fringe benefit enjoyed by you
at the time of the Change In Control of the
Company, or (iv) the failure by the Company to
provide you with the number of paid vacation days
to which you are entitled on the basis of years of
service with the Company in accordance with the
Company's normal vacation policy in effect at the
time of the Change In Control of the Company;
3.3.7 the failure of the Company to obtain a
satisfactory agreement from any successor to
assume and agree to perform this Agreement, as
contemplated in Section 5 of this Agreement; or
3.3.8 any purported termination of your employment that
is not effected pursuant to a Notice of
Termination satisfying the requirements of
Subsection 3.4 below (and, if applicable, the
requirements of Subsection 3.2 above); for
purposes of this Agreement, no such purported
termination shall be effective.
Your rights to terminate your employment pursuant to this
Subsection shall not be affected by your incapacity due to physical or mental
illness. Your continued employment shall not constitute consent to, or a waiver
of rights with respect to, any circumstance constituting Good Reason under this
Agreement. In the event you deliver Notice of Termination based on circumstances
set forth in Paragraphs 3.3.1, 3.3.5, 3.3.6, 3.3.7, or 3.3.8 above, which are
fully corrected prior to the Date of Termination set forth in your Notice of
Termination, the Notice of Termination shall be deemed withdrawn and of no
further force or effect.
3.4 NOTICE OF TERMINATION. Any purported termination of your
employment by the Company or by you shall be communicated by written Notice of
Termination to the other party to this Agreement in accordance with Section 6 of
this Agreement. For purposes of this Agreement, a "Notice of Termination" shall
mean a notice that shall indicate the specific termination provision in this
Agreement relied on, and shall set forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of your employment
under the provision so indicated.
3.5 DATE OF TERMINATION, ETC. "Date of Termination" shall mean (A) if
your employment is terminated for Disability, 30 days after Notice of
Termination is given (provided that you shall not have returned to the full-time
performance of your duties during such 30-day period), and (B) if your
employment is terminated pursuant to Subsection 3.2 or 3.3 above or for any
other reason (other than Disability), the date specified in the Notice of
Termination (which, in the case of a termination pursuant to Subsection 3.2
above shall not be less than 30 days, and in the case of a termination pursuant
to Subsection 3.3 above shall not be less than 15 nor more than 60 days,
respectively, from the date the Notice of Termination is given). However, if
within 15 days after any Notice of Termination is given, or, if later, prior to
the Date of Termination (as determined without regard to this provision), the
party receiving the Notice of Termination notifies the other party that a
dispute exists concerning the termination, then the Date of Termination shall be
the date on which the dispute is finally determined, either by mutual written
agreement of the parties, by a binding arbitration award, or by a final
judgment, order, or decree of a court of competent jurisdiction (which is not
appealable or with respect to which the time for appeal has expired and no
appeal has been perfected). The Date of Termination shall be extended by a
notice of dispute only if the notice is given in good faith and the party giving
the notice pursues the resolution of the dispute with reasonable diligence.
Notwithstanding the pendency of any such dispute, the Company will continue to
pay you your full compensation in effect when the notice giving rise to the
dispute was given (including, but not limited to, base salary) and continue you
as a participant in all compensation, benefit, and insurance plans in which you
were participating when the notice giving rise to the dispute was given, until
the dispute is finally resolved in accordance with this Subsection. Amounts paid
under this Subsection are in addition to all other amounts due under this
Agreement and shall not be offset against or reduce any other amounts due under
this Agreement except to the extent otherwise provided in subsection 4.4.
4. COMPENSATION ON TERMINATION OR DURING DISABILITY. Following a Change In
Control of the Company, as defined by Section 2, on termination of your
employment or during a period of disability you shall be entitled to the
following benefits:
4.1 During any period that you fail to perform your full-time duties
with the Company as a result of incapacity due to physical or mental illness,
you shall continue to receive your base salary at the rate in effect at the
commencement of any such period, together with all amounts payable to you under
any compensation plan of the Company during the period, until this Agreement is
terminated pursuant to section 3.1 above. Thereafter, or in the event your
employment shall be terminated by the Company or by you for Retirement, or by
reason of your death, your benefits shall be determined under the Company's
retirement, insurance, and other compensation programs then in effect in
accordance with the terms of those programs.
4.2 If your employment shall be terminated by the Company for Cause or
by you other than for Good Reason, Disability, death, or Retirement, the Company
shall pay you your full base salary through the Date of Termination at the rate
in effect at the time Notice of Termination is given, plus all other amounts and
benefits to which you are entitled under any compensation plan of the Company at
the time the payments are due. The Company shall have no obligations to you
under this Agreement.
4.3 If your employment by the Company shall be terminated (a) by the
Company other than for Cause, Retirement or Disability, or (b) by you for Good
Reason, then you shall be entitled to the benefits provided below:
4.3.1 The Company shall pay you your full salary through
the Date of Termination at the rate in effect at
the time notice of Termination is given, plus all
other amounts and benefits to which you are
entitled under any compensation plan of the
Company, at the time the payments are due, except
as otherwise provided below.
4.3.2 In lieu of any further salary payments to you for
periods subsequent to the Date of Termination, the
Company shall pay to you, as severance pay the
following: (i) a lump sum severance payment equal
to three (3) times the average of your
Compensation for the five (5) years prior to the
occurrence of the circumstance giving rise to the
notice of Termination, plus (ii) the amounts in
the forms set forth in paragraphs 4.3.3, 4.3.4 and
4.3.5 (the "Severance Payments"). In addition to
the Severance Payments, the Company shall pay to
you an additional amount equal to the amount of
the Excise Tax, if any, that is due or determined
to be due under Section 4999 of the Internal
Revenue Code of 1986, as amended, resulting from
the Severance Payments or any other payments under
this Agreement or any other agreement between you
and the Company and an amount sufficient to pay
the taxes on any such Excise Taxes (the
"Gross-up"). For purposes of this Agreement,
"Compensation" shall mean the aggregate
remuneration paid by the Company to you during a
calendar year, including bonuses, awards under the
Company's Restricted Stock Plan, benefits under
employee benefit plans, automobile allowances or
any fees paid to you as remuneration for serving
as a Director of the Company.
4.3.3 The Company shall continue coverage for you and
your dependents under any health or welfare
benefit plan under which you and your dependents
were participating prior to THE CHANGE IN CONTROL
FOR A PERIOD ENDING ON THE EARLIER to occur of (i)
the date you become covered by a new employer's
health and welfare benefit plan, (ii) the date you
become covered by Medicare, or (iii) the date
which is thirty-six (36) months from the date of
Termination. The coverage for your dependents
shall end earlier than (i), (ii) or (iii) if
required by the health or welfare benefit plan due
to age eligibility.
4.3.4 The Company shall pay to you any deferred
compensation, including, but not limited to
deferred bonuses, allocated or credited to you or
your account as of the Date of Termination.
4.3.5 Outstanding stock options or Restricted Stock
grants, if any, granted to you under the Company's
Stock Plans which are not vested on Termination
shall immediately vest.
4.3.6 Where you shall prevail in any such action, the
Company shall also pay to you all legal and
accounting fees and expenses incurred by you as a
result of the termination (including all such fees
and expenses incurred by you as a result of the
termination (including all such fees and expenses,
if any, incurred in contesting or disputing any
termination or in seeking to obtain or enforce any
right or benefit provided by this Agreement or in
connection with any tax audit or proceeding to the
extent attributable to the application of Code
Section 4999 to any payment or benefit provided
under this Agreement) or any other agreement with
the Company.
4.3.7 The amount of Severance Payments and any Gross-up
due to you under this or any other relevant
agreement with the Company shall be determined by
a third party agreed to by you and the Company. If
you cannot agree on a third party, then both third
parties shall determine the amounts due under this
Agreement. If the third parties do not agree on
the amount to be paid to you, then either party
may submit the calculation of the amounts which
are in dispute to Arbitration in accordance with
this Agreement. The payments provided for in
Paragraphs 4.3.2, 4.3.4 AND 4.3.5 ABOVE, SHALL BE
MADE NO LATER THAN THE THIRTIETH (30TH) day
following the Date of Termination. However, if the
amounts of the payments cannot be finally
determined on or before that day, the Company
shall pay to you on that day an estimate, as
determined in good faith by the Company, of the
minimum amount of such payments and shall pay the
remainder of those payments (together with
interest at the rate provided in Section
1274(b)(2)(B) of the Code) as soon as the amount
can be determined but in no event later than the
30th day after the Date of Termination. In the
event that the amount of the estimate payments
exceeds the amount subsequently determined to have
been due, the excess shall constitute a loan by
the Company to you payable on the 30th day after
demand by the Company (together with interest at
the rate provided in Section 1274(b)(2)(B) of the
Code).
4.4 You shall not be required to mitigate the amount of any payment
provided for in this Section 4 by seeking other employment or otherwise, nor
shall the amount of any payment or benefit provided for in this Section 4 be
reduced by any compensation earned by you as the result of employment by another
employer, by retirement benefits, by offset against any amount claimed to be
owed by you to the Company, or otherwise except as specifically provided in this
Section 4.
4.5 In addition to all other amounts payable to you under this Section
4, you shall be entitled to receive all qualified benefits payable to you under
the Company's 401(k) Plan, Defined Benefit Plan and any other plan or agreement
relating to retirement benefits.
5. SUCCESSORS; BINDING AGREEMENT.
5.1 The Company will require any successor (whether direct or
indirect, by purchase, merger, consolidation, or otherwise) to all or
substantially all of the business and/or assets of the Company 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. Failure of the Company to obtain the assumption and agreement
prior to the effectiveness of any succession shall be a breach of this agreement
and shall entitle you to compensation from the Company in the same amount and on
the same terms as you would have been entitled to under this Agreement if you
had terminated your employment for Good Reason following a Change In Control of
the Company, except that for purposes of implementing the foregoing, the date on
which any such succession becomes effective shall be deemed the Date of
Termination.
5.2 This Agreement shall inure to the benefit of and be enforceable by
your personal or legal representatives, executors, administrators, heirs,
distributees, and legatees. If you should die while any amount would still be
payable to you if you had continued to live, all such amounts, unless otherwise
provided in this Agreement, shall be paid in accordance with the terms of this
Agreement to your legatee or other designee or, if there is no such designee, to
your estate.
6. NOTICE. For the purpose of this Agreement, all notices and other
communications provided for in the Agreement shall be in writing and shall be
deemed to have been duly given when delivered or mailed by United States
registered or certified mail, return receipt requested, postage prepaid,
addressed to the respective addresses set forth on the first page of this
Agreement, provided that all notices to the Company shall be directed to the
attention of the Board with a copy to the Secretary of the Company, or to such
other address as either party may have furnished to the other in writing in
accordance this Agreement, except that notice of a change of address shall be
effective only on receipt.
7. MISCELLANEOUS.
7.1 No provision of this Agreement may be modified, waived, or
discharged unless the waiver, modification, or discharge is agreed to in writing
and signed by you and such officer as may be specifically designated by the
Board.
7.2 No waiver by either party to this Agreement at any time of any
breach by the other party of, or compliance with, any condition or provision of
this Agreement to be performed by such other party shall be deemed a waiver of
similar or dissimilar provisions or conditions at the same or at any prior or
subsequent time.
7.3 No agreements or representations, oral or otherwise, express or
implied, with respect to the subject matter of this Agreement have been made by
either party that are not expressly set forth in this Agreement.
7.4 Nothing in this Agreement is intended to reduce any benefits
payable to you under any other agreement you may have with the Company or in any
Company plan in which you may participate.
7.5 The validity, interpretation, construction, and performance of
this Agreement shall be governed by the law of New Jersey without reference to
its conflict of laws principals.
7.6 All references to sections of the Exchange Act or the Code shall
be deemed also to refer to any successor provisions to such sections. Any
payments provided for shall be paid net of any applicable withholding or
deduction required under federal, state or local law.
7.7 The obligations of the Company under Section 4 shall survive the
expiration of the term of this Agreement.
8. VALIDITY. The validity or enforceability of any provision of this
Agreement shall not affect the validity or unenforceability of any other
provision of this Agreement, which shall remain in full force and effect.
9. COUNTERPARTS. This Agreement may be executed in several counterparts,
each of which shall be deemed to be an original but all of which together will
constitute one and the same instrument.
10. ARBITRATION. Any dispute or controversy arising under or in connection
with this Agreement shall be settled exclusively by arbitration in New Jersey in
accordance with the rules of the American Arbitration Association then in
effect. Judgment may be entered on the arbitrator's award in any court having
jurisdiction. However, you shall be entitled to seek specific performance of
your right to be paid until the Date of Termination during the pendency of any
dispute or controversy arising under or in connection this Agreement.
11. ENTIRE AGREEMENT. This Agreement sets forth the entire understanding of
the parties with respect to its subject matter and supersedes all prior written
or oral agreements or understandings with respect to the subject matter.
In witness whereof, the parties have executed this agreement as of the day
and year first above written.
MIDDLESEX WATER COMPANY
By:/s/ J. Xxxxxxx Xxxxxxxx
-----------------------------------
J. Xxxxxxx Xxxxxxxx
Chairman of the Board and President
ATTEST:
/s/ Xxxxxx X. Xxxxxxxx
----------------------
Xxxxxx X. Xxxxxxxx
Vice President
Secretary and Treasurer
/s/ Xxxxxx X. Xxxxxxxx
------------------------------
Xxxxxx X. Xxxxxxxx
Exhibit 10.15(g)
CHANGE IN CONTROL TERMINATION AGREEMENT
This Change in Control Termination Agreement (the "Agreement") is
entered into on April 7 1999, between Middlesex Water Company, a New Jersey
corporation, with its principal place of business located at 0000 Xxxxxx Xxxx,
X.X. Xxx 0000, Xxxxxx, Xxx Xxxxxx 00000-0000, (the "Company"), and Xxxxxx X.
Xxxxxxxx, residing at 00 Xxxxxxx Xxxxx, Xxxxxxx, Xxx Xxxxxx 00000.
RECITALS
A. The Company considers it essential to the best interests of its
stockholders to xxxxxx the continuous employment of key management personnel. In
this connection, the Board of Directors of the Company (the "Board") recognizes
that, as is the case with many publicly held Companies, the possibility of a
Change In Control may exist. This possibility, and the uncertainty and questions
that it may raise among management, may result in the departure or distraction
of management personnel to the detriment of the Company and its stockholders.
B. The Board has determined that appropriate steps should be taken to
reinforce and encourage the continued attention and dedication of members of the
Company's management, including yourself, to the assigned duties without
distraction in the face of potentially disturbing circumstances arising from the
possibility of a Change In Control of the Company.
C. To induce you to remain in the employ of the Company, and in
consideration of your agreement set forth below, the Company agrees that you
shall receive the severance benefits set forth in this Agreement in the event
your employment with the Company is terminated or "constructively terminated" as
defined herein in connection with a "Change In Control of the Company" (as
defined in Section 2 below) under the circumstances described below. This
Agreement is meant to supersede any other specific written agreements that may
have been entered into between yourself and the Company concerning termination
of employment.
Therefore, in consideration of your continued employment and the parties'
agreement to be bound by the terms contained in this Agreement, the parties
agree as follows:
1. TERM OF AGREEMENT. This Agreement shall commence as of April 8, 1999 and
shall continue in effect through December 31, 2001. However, commencing on
December 31, 2001, and each December 31 afterwards, the term of this Agreement
shall automatically be extended for 1 additional year unless, no later than the
preceding November 1, the Company shall have given notice that it does not wish
to extend this Agreement. Notwithstanding the foregoing, if a Change In Control
of the Company shall be proposed to occur or have occurred during the original
or any extended term of this Agreement, this Agreement shall continue in effect
for a period of three years beyond the month in which the Change In Control
occurs. Notwithstanding the foregoing, and provided no Change of Control shall
have occurred, this Agreement shall automatically terminate on the earlier to
occur of (i) your termination of employment with the Company, or (ii) the
Company's furnishing you with notice of termination, irrespective of the
effective date of the termination.
2. CHANGE IN CONTROL. No benefits shall be payable under this Agreement
unless there shall have been a Change In Control of the Company, as set forth
below. For purposes of this Agreement, a "Change In Control" of the Company
shall be deemed to occur if any party or group acquires beneficial ownership of
20 percent or more of the voting shares of the Company; or if shareholder
approval is required for a transaction involving the acquisition of the Company
through the purchase or exchange of the stock or assets of the Company by merger
or otherwise; or if one-third or more of the Board elected in a 12-month period
or less are so elected without the approval of a majority of the Board as
constituted at the beginning of such period; or a liquidation or dissolution of
Company.
3. TERMINATION FOLLOWING CHANGE IN CONTROL. If any of the events described
in Section 2 above constituting a Change In Control of the Company shall have
occurred, you shall be entitled to the benefits provided in subsection 4.3 below
on the subsequent termination or "Constructive Termination" of your employment
during the term of this Agreement, unless the termination is (A) because of your
death, Disability or Retirement, (B) by the Company for Cause, or (C) by you
other than for Good Reason.
3.1 DISABILITY; RETIREMENT. If, as a result of your incapacity due to
physical or mental illness, you shall have been absent from the full-time
performance of your duties with the Company for 6 consecutive months, and within
30 days after written notice of termination is given you shall not have returned
to the full-time performance of your duties, your employment may be terminated
for "Disability." Termination by the Company or you of your employment based on
"Retirement" shall mean termination in accordance with the Company's retirement
policy, including early retirement, generally applicable to its salaried
employees or in accordance with any retirement arrangement established with your
consent with respect to you.
3.2 CAUSE. Termination by the Company of your employment for "Cause" shall
mean termination on:
3.2.1 the willful and continued failure by you to
substantially perform your duties with the Company
as such employment was performed by you prior to
the Change of Control (other than any such failure
resulting from your incapacity due to physical or
mental illness or any such actual or anticipated
failure after the issuance by you of a Notice of
Termination for Good Reason as defined in
Subsections 3.4 and 3.3, respectively) after a
written demand for substantial performance is
delivered to you by the Board, which demand
specifically identifies the manner in which the
Board believes that you have not substantially
performed your duties; or
3.2.2 the willful act by you in conduct that is
demonstrably and materially injurious to the
Company, and which the Board deems to cause or
will cause substantial economic damage to the
Company or injury to the business reputation of
the Company, monetarily or otherwise. For purposes
of this Subsection, no act, or failure to act, on
your part shall be deemed "willful" unless done,
or omitted to be done, by you not in good faith
and without a reasonable belief that your action
or omission was in the best interest of the
Company. Notwithstanding the foregoing, you shall
not be deemed to have been terminated for Cause
unless and until there shall have been delivered
to you a copy of a resolution duly adopted by the
affirmative vote of not less than three-quarters
of the entire membership of the Board at a meeting
of the Board called and held for such purpose
(after reasonable notice to you and an opportunity
for you, together with your counsel, to be heard
before the Board), finding that in the good faith
opinion of the Board you were guilty of conduct
set forth above in clauses 3.2.1 or 3.2.2 of the
first sentence of this Subsection and specifying
the particulars in detail.
3.3 GOOD REASON. You shall be entitled to terminate your employment
for Good Reason. For purposes of this Agreement, "Good Reason" shall mean,
without your express written consent, the occurrence in connection with a Change
In Control of the Company of any of the following circumstances unless, in the
case of paragraphs 3.3.1, 3.3.5, 3.3.6, 3.3.7, or 3.3.8, the circumstances are
fully corrected prior to the Date of Termination specified in the Notice of
Termination, as defined in Subsections 3.5 and 3.4, respectively, given in
respect of them. If you have Good Reason for your termination you shall be
considered to have been "Constructively Terminated" by the Company:
3.3.1 the assignment to you of any duties inconsistent
with your status and position (i) prior to the
Change In Control where such change is a direct
result of any pending Change in Control; or (ii)
as such status exists immediately prior to the
Change In Control of the Company, or (iii) a
substantial adverse alteration in the nature or
status of your responsibilities from those in
effect immediately prior to the Change In Control
of the Company whichever is applicable;
3.3.2 a reduction by the Company in your annual base
salary as in effect on this date or as the same
may be increased from time to time irrespective of
future Company policies including any
across-the-board salary reductions similarly
affecting all key employees of the Company;
3.3.3 your relocation, without your consent, to a
location not within twenty five (25) miles of your
present office or job location, except for
required travel on the Company's business to an
extent substantially consistent with your present
business travel obligations;
3.3.4 the failure by the Company, without your consent,
to pay to you any part of your current
compensation, or to pay to you any part of an
installment of deferred compensation under any
deferred compensation program of the Company,
within fourteen (14) days of the date the
compensation is due;
3.3.5 the failure by the Company to continue in effect
any bonus to which you were entitled, or any
compensation plan in which you participate (i)
prior to the Change in Control where such change
is a direct result of any pending Change In
Control; or (ii) immediately prior to the Change
In Control of the Company that is material to your
total compensation, including but not limited to
the Company's Restricted Stock Plan, 401(k) Plan,
and Benefit Plans, or any substitute plans adopted
prior to the Change In Control of the Company,
unless an equitable arrangement (embodied in an
ongoing substitute or alternative plan) has been
made with respect to the plan, or the failure by
the Company to continue your participation in it
(or in such substitute or alternative plan) on a
basis not materially less favorable, both in terms
of the amount of benefits provided and the level
of your participation relative to other
participants, as existed at the time of the Change
In Control;
3.3.6 the failure by the Company to continue to provide
you with (i) benefits substantially similar to
those enjoyed by you under any of the Company's
life insurance, medical, health and accident, or
disability plans in which you were participating
at the time of the Change In Control of the
Company was in effect for the employees of the
Company generally at the time of the Change In
Control, (ii) the failure to continue to provide
you with a Company automobile or allowance in lieu
of it at the time of the Change In Control of the
Company, (iii) the taking of any action by the
Company that would directly or indirectly
materially reduce any of such benefits or deprive
you of any material fringe benefit enjoyed by you
at the time of the Change In Control of the
Company, or (iv) the failure by the Company to
provide you with the number of paid vacation days
to which you are entitled on the basis of years of
service with the Company in accordance with the
Company's normal vacation policy in effect at the
time of the Change In Control of the Company;
3.3.7 the failure of the Company to obtain a
satisfactory agreement from any successor to
assume and agree to perform this Agreement, as
contemplated in Section 5 of this Agreement; or
3.3.8 any purported termination of your employment that
is not effected pursuant to a Notice of
Termination satisfying the requirements of
Subsection 3.4 below (and, if applicable, the
requirements of Subsection 3.2 above); for
purposes of this Agreement, no such purported
termination shall be effective.
Your rights to terminate your employment pursuant to this
Subsection shall not be affected by your incapacity due to physical or mental
illness. Your continued employment shall not constitute consent to, or a waiver
of rights with respect to, any circumstance constituting Good Reason under this
Agreement. In the event you deliver Notice of Termination based on circumstances
set forth in Paragraphs 3.3.1, 3.3.5, 3.3.6, 3.3.7, or 3.3.8 above, which are
fully corrected prior to the Date of Termination set forth in your Notice of
Termination, the Notice of Termination shall be deemed withdrawn and of no
further force or effect.
3.4 NOTICE OF TERMINATION. Any purported termination of your
employment by the Company or by you shall be communicated by written Notice of
Termination to the other party to this Agreement in accordance with Section 6 of
this Agreement. For purposes of this Agreement, a "Notice of Termination" shall
mean a notice that shall indicate the specific termination provision in this
Agreement relied on, and shall set forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of your employment
under the provision so indicated.
3.5 DATE OF TERMINATION, ETC. "Date of Termination" shall mean (A) if
your employment is terminated for Disability, 30 days after Notice of
Termination is given (provided that you shall not have returned to the full-time
performance of your duties during such 30-day period), and (B) if your
employment is terminated pursuant to Subsection 3.2 or 3.3 above or for any
other reason (other than Disability), the date specified in the Notice of
Termination (which, in the case of a termination pursuant to Subsection 3.2
above shall not be less than 30 days, and in the case of a termination pursuant
to Subsection 3.3 above shall not be less than 15 nor more than 60 days,
respectively, from the date the Notice of Termination is given). However, if
within 15 days after any Notice of Termination is given, or, if later, prior to
the Date of Termination (as determined without regard to this provision), the
party receiving the Notice of Termination notifies the other party that a
dispute exists concerning the termination, then the Date of Termination shall be
the date on which the dispute is finally determined, either by mutual written
agreement of the parties, by a binding arbitration award, or by a final
judgment, order, or decree of a court of competent jurisdiction (which is not
appealable or with respect to which the time for appeal has expired and no
appeal has been perfected). The Date of Termination shall be extended by a
notice of dispute only if the notice is given in good faith and the party giving
the notice pursues the resolution of the dispute with reasonable diligence.
Notwithstanding the pendency of any such dispute, the Company will continue to
pay you your full compensation in effect when the notice giving rise to the
dispute was given (including, but not limited to, base salary) and continue you
as a participant in all compensation, benefit, and insurance plans in which you
were participating when the notice giving rise to the dispute was given, until
the dispute is finally resolved in accordance with this Subsection. Amounts paid
under this Subsection are in addition to all other amounts due under this
Agreement and shall not be offset against or reduce any other amounts due under
this Agreement except to the extent otherwise provided in subsection 4.4.
4. COMPENSATION ON TERMINATION OR DURING DISABILITY. Following a Change In
Control of the Company, as defined by Section 2, on termination of your
employment or during a period of disability you shall be entitled to the
following benefits:
4.1 During any period that you fail to perform your full-time duties
with the Company as a result of incapacity due to physical or mental illness,
you shall continue to receive your base salary at the rate in effect at the
commencement of any such period, together with all amounts payable to you under
any compensation plan of the Company during the period, until this Agreement is
terminated pursuant to section 3.1 above. Thereafter, or in the event your
employment shall be terminated by the Company or by you for Retirement, or by
reason of your death, your benefits shall be determined under the Company's
retirement, insurance, and other compensation programs then in effect in
accordance with the terms of those programs.
4.2 If your employment shall be terminated by the Company for Cause or
by you other than for Good Reason, Disability, death, or Retirement, the Company
shall pay you your full base salary through the Date of Termination at the rate
in effect at the time Notice of Termination is given, plus all other amounts and
benefits to which you are entitled under any compensation plan of the Company at
the time the payments are due. The Company shall have no obligations to you
under this Agreement.
4.3 If your employment by the Company shall be terminated (a) by the
Company other than for Cause, Retirement or Disability, or (b) by you for Good
Reason, then you shall be entitled to the benefits provided below:
4.3.1 The Company shall pay you your full salary through
the Date of Termination at the rate in effect at
the time notice of Termination is given, plus all
other amounts and benefits to which you are
entitled under any compensation plan of the
Company, at the time the payments are due, except
as otherwise provided below.
4.3.2 In lieu of any further salary payments to you for
periods subsequent to the Date of Termination, the
Company shall pay to you, as severance pay the
following: (i) a lump sum severance payment equal
to three (3) times the average of your
Compensation for the five (5) years prior to the
occurrence of the circumstance giving rise to the
notice of Termination, plus (ii) the amounts in
the forms set forth in paragraphs 4.3.3, 4.3.4 and
4.3.5 (the "Severance Payments"). In addition to
the Severance Payments, the Company shall pay to
you an additional amount equal to the amount of
the Excise Tax, if any, that is due or determined
to be due under Section 4999 of the Internal
Revenue Code of 1986, as amended, resulting from
the Severance Payments or any other payments under
this Agreement or any other agreement between you
and the Company and an amount sufficient to pay
the taxes on any such Excise Taxes (the
"Gross-up"). For purposes of this Agreement,
"Compensation" shall mean the aggregate
remuneration paid by the Company to you during a
calendar year, including bonuses, awards under the
Company's Restricted Stock Plan, benefits under
employee benefit plans, automobile allowances or
any fees paid to you as remuneration for serving
as a Director of the Company.
4.3.3 The Company shall continue coverage for you and
your dependents under any health or welfare
benefit plan under which you and your dependents
were participating prior to THE CHANGE IN CONTROL
FOR A PERIOD ENDING ON THE EARLIER to occur of (i)
the date you become covered by a new employer's
health and welfare benefit plan, (ii) the date you
become covered by Medicare, or (iii) the date
which is thirty-six (36) months from the date of
Termination. The coverage for your dependents
shall end earlier than (i), (ii) or (iii) if
required by the health or welfare benefit plan due
to age eligibility.
4.3.4 The Company shall pay to you any deferred
compensation, including, but not limited to
deferred bonuses, allocated or credited to you or
your account as of the Date of Termination.
4.3.5 Outstanding stock options or Restricted Stock
grants, if any, granted to you under the Company's
Stock Plans which are not vested on Termination
shall immediately vest.
4.3.6 Where you shall prevail in any such action, the
Company shall also pay to you all legal and
accounting fees and expenses incurred by you as a
result of the termination (including all such fees
and expenses incurred by you as a result of the
termination (including all such fees and expenses,
if any, incurred in contesting or disputing any
termination or in seeking to obtain or enforce any
right or benefit provided by this Agreement or in
connection with any tax audit or proceeding to the
extent attributable to the application of Code
Section 4999 to any payment or benefit provided
under this Agreement) or any other agreement with
the Company.
4.3.7 The amount of Severance Payments and any Gross-up
due to you under this or any other relevant
agreement with the Company shall be determined by
a third party agreed to by you and the Company. If
you cannot agree on a third party, then both third
parties shall determine the amounts due under this
Agreement. If the third parties do not agree on
the amount to be paid to you, then either party
may submit the calculation of the amounts which
are in dispute to Arbitration in accordance with
this Agreement. The payments provided for in
Paragraphs 4.3.2, 4.3.4 AND 4.3.5 ABOVE, SHALL BE
MADE NO LATER THAN THE THIRTIETH (30TH) day
following the Date of Termination. However, if the
amounts of the payments cannot be finally
determined on or before that day, the Company
shall pay to you on that day an estimate, as
determined in good faith by the Company, of the
minimum amount of such payments and shall pay the
remainder of those payments (together with
interest at the rate provided in Section
1274(b)(2)(B) of the Code) as soon as the amount
can be determined but in no event later than the
30th day after the Date of Termination. In the
event that the amount of the estimate payments
exceeds the amount subsequently determined to have
been due, the excess shall constitute a loan by
the Company to you payable on the 30th day after
demand by the Company (together with interest at
the rate provided in Section 1274(b)(2)(B) of the
Code).
4.4 You shall not be required to mitigate the amount of any payment
provided for in this Section 4 by seeking other employment or otherwise, nor
shall the amount of any payment or benefit provided for in this Section 4 be
reduced by any compensation earned by you as the result of employment by another
employer, by retirement benefits, by offset against any amount claimed to be
owed by you to the Company, or otherwise except as specifically provided in this
Section 4.
4.5 In addition to all other amounts payable to you under this Section
4, you shall be entitled to receive all qualified benefits payable to you under
the Company's 401(k) Plan, Defined Benefit Plan and any other plan or agreement
relating to retirement benefits.
5. SUCCESSORS; BINDING AGREEMENT.
5.1 The Company will require any successor (whether direct or
indirect, by purchase, merger, consolidation, or otherwise) to all or
substantially all of the business and/or assets of the Company 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. Failure of the Company to obtain the assumption and agreement
prior to the effectiveness of any succession shall be a breach of this agreement
and shall entitle you to compensation from the Company in the same amount and on
the same terms as you would have been entitled to under this Agreement if you
had terminated your employment for Good Reason following a Change In Control of
the Company, except that for purposes of implementing the foregoing, the date on
which any such succession becomes effective shall be deemed the Date of
Termination.
5.2 This Agreement shall inure to the benefit of and be enforceable by
your personal or legal representatives, executors, administrators, heirs,
distributees, and legatees. If you should die while any amount would still be
payable to you if you had continued to live, all such amounts, unless otherwise
provided in this Agreement, shall be paid in accordance with the terms of this
Agreement to your legatee or other designee or, if there is no such designee, to
your estate.
6. NOTICE. For the purpose of this Agreement, all notices and other
communications provided for in the Agreement shall be in writing and shall be
deemed to have been duly given when delivered or mailed by United States
registered or certified mail, return receipt requested, postage prepaid,
addressed to the respective addresses set forth on the first page of this
Agreement, provided that all notices to the Company shall be directed to the
attention of the Board with a copy to the Secretary of the Company, or to such
other address as either party may have furnished to the other in writing in
accordance this Agreement, except that notice of a change of address shall be
effective only on receipt.
7. MISCELLANEOUS.
7.1 No provision of this Agreement may be modified, waived, or
discharged unless the waiver, modification, or discharge is agreed to in writing
and signed by you and such officer as may be specifically designated by the
Board.
7.2 No waiver by either party to this Agreement at any time of any
breach by the other party of, or compliance with, any condition or provision of
this Agreement to be performed by such other party shall be deemed a waiver of
similar or dissimilar provisions or conditions at the same or at any prior or
subsequent time.
7.3 No agreements or representations, oral or otherwise, express or
implied, with respect to the subject matter of this Agreement have been made by
either party that are not expressly set forth in this Agreement.
7.4 Nothing in this Agreement is intended to reduce any benefits
payable to you under any other agreement you may have with the Company or in any
Company plan in which you may participate.
7.5 The validity, interpretation, construction, and performance of
this Agreement shall be governed by the law of New Jersey without reference to
its conflict of laws principals.
7.6 All references to sections of the Exchange Act or the Code shall
be deemed also to refer to any successor provisions to such sections. Any
payments provided for shall be paid net of any applicable withholding or
deduction required under federal, state or local law.
7.7 The obligations of the Company under Section 4 shall survive the
expiration of the term of this Agreement.
8. VALIDITY. The validity or enforceability of any provision of this
Agreement shall not affect the validity or unenforceability of any other
provision of this Agreement, which shall remain in full force and effect.
9. COUNTERPARTS. This Agreement may be executed in several counterparts,
each of which shall be deemed to be an original but all of which together will
constitute one and the same instrument.
10. ARBITRATION. Any dispute or controversy arising under or in connection
with this Agreement shall be settled exclusively by arbitration in New Jersey in
accordance with the rules of the American Arbitration Association then in
effect. Judgment may be entered on the arbitrator's award in any court having
jurisdiction. However, you shall be entitled to seek specific performance of
your right to be paid until the Date of Termination during the pendency of any
dispute or controversy arising under or in connection this Agreement.
11. ENTIRE AGREEMENT. This Agreement sets forth the entire understanding of
the parties with respect to its subject matter and supersedes all prior written
or oral agreements or understandings with respect to the subject matter.
In witness whereof, the parties have executed this agreement as of the
day and year first above written.
MIDDLESEX WATER COMPANY
By:/s/ J. Xxxxxxx Xxxxxxxx
-----------------------------------
J. Xxxxxxx Xxxxxxxx
Chairman of the Board and President
ATTEST:
/s/ Xxxxxx X. Xxxxxxxx
----------------------
Xxxxxx X. Xxxxxxxx
Vice President
Secretary and Treasurer
/s/ Xxxxxx X. Xxxxxxxx
------------------------------------
Xxxxxx X. Xxxxxxxx
