Exhibit 10.3
AGREEMENT
This Agreement by and between Eastern Enterprises, a Massachusetts
business trust with its principal offices in Weston, Massachusetts ("Eastern"),
and Fred C. Raskin (the "Executive"), is entered into as of the 1st day of
September, 1998:
WITNESSETH THAT:
WHEREAS the Executive is an executive employee of Eastern;
WHEREAS Eastern is simultaneously entering into an Agreement dated as
of September 1, 1998 with Executive (the "Employment Agreement"), under which
Eastern has assured Executive of certain salary and benefit amounts following
termination of his employment, whether in the context of a change of control or
otherwise; and
WHEREAS the Board of Trustees of Eastern (the "Board") has determined
that it is in the best interests of Eastern, its shareholders and the Executive
to assure continuity in the management of Eastern's administration and
operations by entering into an agreement to provide the Executive with certain
assurances pertaining to compensation and benefits in the event that a Change of
Control, as defined below, should be under consideration or should have
occurred.
NOW, THEREFORE, it is hereby agreed by and between the parties hereto
as follows:
1. EMPLOYMENT. Eastern agrees that from and after the Effective Date as
hereinafter defined it shall continue the Executive in its employ and the
Executive agrees that from and after the Effective Date he shall remain in the
employ of Eastern, in each case for the period described in Section 4 hereof and
upon the other terms and conditions herein provided.
2. CERTAIN DEFINITIONS: For purposes of this Agreement, the
following terms shall have the meanings set forth below:
(a) "Cause" shall mean, subject to the provisions of this
definition, (i) conviction of the Executive for (or a plea of nolo
contendere by the Executive with respect to) a felony, or (ii) an act
by the Executive of fraud or dishonesty which has resulted or is
likely to result in material economic damage to Eastern or its
subsidiaries. No purported termination of Executive shall be deemed a
termination for Cause unless the Board shall have made a determination
that Cause exists nor unless, in the case of Cause asserted under
clause (a)(ii) above, the Board shall have given the Executive the
opportunity, upon at least thirty (30) days' prior written notice, to
appear and be heard with counsel before the Board.
(b) "Change of Control" shall mean the occurrence of
any of the following after January 1, 1998:
(i) any "person" (as such term is used in Sections
13(d) and 14(d) of the Securities Exchange Act of 1934, as
amended) or group of "persons" (as so defined), other than
Eastern, becomes a beneficial owner directly or indirectly of
securities representing twenty-five percent (25%) or more of
the combined voting power of the then outstanding voting
securities of Eastern; or
(ii) there is consummated a merger or consolidation
("merger") involving Eastern and immediately after such
merger the beneficial owners immediately prior to such merger
of the then outstanding voting securities of Eastern do not
continue to own beneficially at least sixty percent (60%) of
the voting securities of the entity or entities resulting
from such merger; or
(iii) there is consummated a sale, lease, exchange,
spin- off or other transfer (any of the foregoing, a
"transfer") of all or substantially all of the assets or
business of Eastern and its subsidiaries, other than any such
transfer resulting in beneficial ownership of not less than
sixty percent (60%) of the assets or business so transferred
or not less than sixty percent (60%) of the voting securities
of the entity or entities to which such assets were
transferred by the owners immediately prior to the transfer
of the then outstanding voting securities of Eastern; or
(iv) within any two-year period, individuals who at
the beginning of such period constituted the Board of
Trustees of Eastern cease for any reason to constitute a
majority thereof; provided, that any trustee who is not in
office at the beginning of such two-year period but whose
election or nomination for election was approved by a vote of
at least two-thirds of the trustees in office at the time of
such approval who were either trustees of Eastern at the
beginning of such period or who were elected to the Board of
Trustees pursuant to an election which was, or for which the
nomination for election was, previously so approved shall be
deemed to have been in office at the beginning of such
two-year period.
(c) "Code" shall mean the federal Internal Revenue Code
of 1986, as amended.
(d) "Disability" shall mean the Executive's demonstrated
inability, over a continuous period of at least twelve (12) months, to
perform the Executive's duties and responsibilities by reason of a
disabling injury or condition that would qualify the Executive for
benefits under Eastern's long term disability program.
(e) "Effective Date" shall mean the date specified in
Section 4(a) below.
(f) "Good Reason" means any of the following unless promptly,
fully and retroactively corrected by Eastern or unless waived in
writing by the Executive: (i) any reduction in the annual rate of base
salary payable to the Executive below the higher of the annual rate at
which base salary is then being paid to the Executive or the annual
rate at which base salary was being paid to the Executive immediately
prior to the Effective Date; (ii) the elimination of or any reduction
in the bonus opportunities made available to the Executive under any
bonus or incentive program; (iii) the elimination of or any reduction
in any other employee or executive benefit, benefit program or
perquisite then available to the Executive or the Executive's family
or that was available to the Executive or the Executive's family
immediately prior to the Effective Date, or any change in any such
employee or executive benefit, benefit program or perquisite that
would result in additional cost to the Executive or the Executive's
family, in each case except for changes in broad-based employee
benefit programs (that is, employee benefit programs available to
non-officer employees generally as well as officers) that have a
similar effect on both officer and non- officer participants generally
in such programs; (iv) any material change in the Executive's duties,
functions or responsibilities (including without limitation reporting
lines); (v) any action resulting in a relocation of the Executive's
regular place of employment to a location that is more than
thirty-five (35) miles from the place where the Executive was
regularly employed immediately prior thereto or immediately prior to
the Effective Date; and (vi) any other material breach of this
Agreement by Eastern.
3. POSITION AND RESPONSIBILITIES. During the period of employment
hereunder, the Executive agrees to serve Eastern in an executive capacity,
subject to the terms of this Agreement.
4. TERM AND DUTIES.
(a) The period of the Executive's employment under this
Agreement shall be deemed to have commenced as of the date (the
"Effective Date") which precedes by six (6) months the date of a
Change of Control and shall continue for a period which ends on the
last day of the twenty-four (24) calendar month period which begins on
the date of such Change of Control.
(b) During the period of employment hereunder and except for
illness or incapacity and reasonable vacation periods, the Executive's
business time, attention, skill and efforts shall be exclusively
devoted to the business and affairs of Eastern and its subsidiaries;
provided, however, that nothing in this Agreement shall preclude the
Executive from engaging in the following:
(i) serving as a director, trustee or
committee member in any company or organization,
(ii) delivering lectures and fulfilling speaking
engagements, and
(iii) engaging in charitable and community
activities,
provided that such activities do not materially adversely affect or
interfere with the performance of the Executive's obligations to
Eastern.
5. COMPENSATION AND BENEFITS. During the Executive's employment under
this Agreement, Eastern shall pay, Provide and make available the following:
(a) Eastern shall pay the Executive base salary at an annual
rate that is not less than the annual rate at which base salary was
being paid to the Executive by Eastern immediately prior to the
Effective Date.
(b) In addition to the salary payable under subsection (a)
above, Eastern shall provide or make available to the Executive, from
and after the Effective Date and during the term of the Executive's
employment hereunder, bonus opportunities, benefits, and perquisites
not less favorable, and on terms not less favorable, to the Executive
than the bonus opportunities, benefits and perquisites provided or
made available and on the terms provided or made available to the
Executive immediately prior to the Effective Date.
6. BUSINESS EXPENSE. Eastern shall pay or reimburse the Executive for
all reasonable travel or other expenses incurred in connection with the
performance of the Executive's duties under this Agreement in accordance with
such procedures as Eastern may from time to time establish.
7. TERMINATION OF EMPLOYMENT. Notwithstanding any other provision
of this Agreement, the Executive's employment under this Agreement may be
terminated:
(a) by Eastern for Cause (but only if such
termination is accomplished in the manner specified in Section 2(a));
(b) by Eastern other than for Cause pursuant to
Section 7(a) and other than on account of Disability or death;
(c) by the Executive for Good Reason;
(d) by the Executive other than for Good Reason,
Disability or death; or
(e) by Eastern or the Executive by reason of the
Executive's Disability or death.
Except in the case of termination by reason of the Executive's death or
termination for Cause pursuant to Section 7(a), any termination by Eastern of
the Executive's employment under this Agreement shall take effect only after
thirty (30) days' prior written notice by Eastern to the Executive.
8. VESTING OF CERTAIN AWARDS AND BENEFITS. In the event of a Change of
Control, the Executive shall be immediately vested in all shares of restricted
stock of Eastern then held by Executive, and all stock options then held by the
Executive that were awarded under Eastern's 1982 Stock Option Plan or 1995 Stock
Option Plan (or any successor plan or plans) and that were not then exercisable
shall become immediately exercisable. If the Executive's employment under this
Agreement shall have been terminated under Section 7(b) or Section 7(c) above
after the Effective Date but before the Change of Control, all shares of
restricted stock held by the Executive immediately prior to termination of
employment shall be vested and all stock options held by the Executive
immediately prior to termination of employment (including replacement options,
if any, issued in substitution for such stock options in connection with the
Change of Control), whether or not otherwise exercisable, shall be exercisable
for a period ending not earlier than the later of (i) the date such options
would have been exercisable without regard to this Section 8, or (ii) thirty
days following the Change of Control, subject in each case to consummation of
the Change of Control; provided, that if stock options are not assumed (and no
replacement options are issued) in connection with the Change of Control, clause
(ii) shall not apply and Eastern shall provide the Executive the opportunity to
exercise all of the stock options held by the Executive immediately prior to
termination of employment (whether or not then exercisable) on the same basis as
options held by active employees that become exercisable in connection with the
Change of Control. The provisions of this Section 8 shall be in addition to, and
not in limitation of, any rights that Executive may otherwise have to the
vesting of benefits upon a Change of Control. Without limiting the foregoing,
this Agreement shall be treated as a "COC Agreement" for purposes of the Eastern
Enterprises Supplemental Executive Retirement Plan and the Eastern Enterprises
Supplemental Retirement Plan for Certain Officers, each as from time to time
amended.
9. PAYMENTS UPON TERMINATION OF EMPLOYMENT.
(a) In the event of any termination of the Executive's
employment during the term of this Agreement, if such termination is
(1) by the Executive pursuant to Section 7(c), above, or (2) by
Eastern pursuant to Section 7(b) above, Eastern shall pay to the
Executive the sum of the following amounts within 30 days of such
termination (provided, that if such termination of employment occurs
after the Effective Date but before the Change of Control, the
Executive shall be entitled to the payments described at (i), (ii) and
(iii) below only upon consummation of the Change of Control):
(i) a lump sum cash amount equal to the product of
three (3) times the annual rate at which the Executive was
being paid base salary immediately prior to such termination
or immediately prior to the Effective Date, if greater;
(ii) a lump sum cash amount equal to the product of
three (3) times the Executive's target benefit or benefits
under the annual bonus or incentive plan or plans in which
the Executive was participating for the period including the
date of termination or times the Executive's target benefit
or benefits under the annual bonus or incentive plan or plans
in which the Executive was participating for the period
including the Effective Date if higher; and
(iii) a lump sum cash amount equal to the product of
(A) the Executive's target benefit or benefits for the bonus
or incentive period or periods that include the date of
termination (under the annual bonus or incentive plan or
plans in which the Executive was participating at the time of
termination), times a (B) a fraction, the numerator of which
is the number of days elapsed in such bonus or incentive
period or periods prior to the date of termination, and the
denominator of which is three hundred sixty-five (365).
In addition, upon termination of employment Eastern shall promptly pay
to the Executive any salary, bonuses, or other payments earned by the
Executive but not yet paid as of the date of termination.
(b) For a period of thirty-six (36) months commencing with
the month in which a termination described in (a)(1) or (a)(2) above
shall have occurred, the Executive and the Executive's family shall
continue to be entitled to participate in Eastern's medical, dental,
life-insurance, disability and other welfare benefit plans and
programs at a level of benefits at least as favorable to the Executive
and the Executive's family, and on terms at least as favorable to the
Executive and the Executive's family, as were available to the
Executive and the Executive's family immediately prior to termination
or immediately prior to the Effective Date (whichever is more
favorable to the Executive and the Executive's family). For purposes
of any such benefit that is based on the Executive's length of
employment, the Executive shall be deemed credited with three (3)
additional years of employment. For purposes of any such benefit that
is based on the Executive's average compensation, the average taken
into account shall not be less than the average that would be
determined by assuming continued base salary and bonus or incentive
payments for a period of three (3) years at the rates described at
Section 9(a) above, and for purposes of any such benefit that is based
on the Executive's compensation at termination of employment, there
shall be taken into account the higher of the Executive's compensation
at termination or the Executive's compensation immediately prior to
the Effective Date. To the extent the continuation of benefits
described in this paragraph cannot be accommodated under the plans or
programs of Eastern then in effect, Eastern shall provide for
substantially equivalent alternative coverage and benefits for the
Executive and the Executive's family. Notwithstanding the foregoing,
Eastern shall not be obligated to provide a benefit or coverage under
this paragraph to the extent an equivalent or better benefit or
coverage is available to the Executive or the Executive's family, on a
basis that is at least as favorable to the Executive and the
Executive's family, under a plan or program of another employer.
Nothing in this paragraph shall be construed as requiring Eastern to
pay severance in addition to the payments and benefits otherwise
provided for in this Agreement.
For a period of twenty-four (24) months commencing with the
month in which a termination described in (a)(1) or (a)(2) above shall
have occurred, the Executive will have the continued use of the
company provided vehicle used by the Executive at the time of his
termination of employment. During such period, Eastern will provide
insurance coverage for such vehicle but the Executive will be
responsible, at his own expense, for all normal costs of operation and
maintenance. At the end of such period, Eastern will afford the
Executive the opportunity to purchase said vehicle at its "blue book"
value, determined on the basis of the most recently issued list of
such values.
10. CERTAIN TAX-RELATED PAYMENTS.
(a) In the event it shall be determined that any "payment in
the nature of compensation" (as that term is used in Section 280G of
the Code) to or for the benefit of the Executive, whether paid or
payable or distributed or distributable pursuant to the terms of this
Agreement or otherwise (a "Payment"), would be subject to the excise
tax imposed by Section 4999 of the Code or comparable state or local
tax or amy interest or penalties with respect to such excise tax or
comparable state or local tax (such excise tax, together with any such
interest and penalties, are hereinafter collectively referred to as
the "Excise Tax"), then, subject to the following sentence, the cash
payments described at Section 9(a)(i), (ii) and (iii) hereof (but
excluding, for the avoidance of doubt, any payments referred to in the
last sentence of Section 9(a)) shall be reduced, but not below zero,
to the extent (and only to the extent) necessary to avoid the
imposition of an Excise Tax. Notwithstanding the foregoing, if the
preceding sentence would result in a reduction of more than ten
percent (10%) in the Executive's total "parachute payments" (as that
term is defined in Section 280G(b)(2) of the Code), or if the
reduction described in the preceding sentence would not eliminate the
Excise Tax, no reduction shall be made in the payments or benefits due
to the Executive under this Agreement or otherwise and instead the
Executive shall be entitled to receive an additional payment (a
"Gross-Up Payment"). The Gross-Up Payment shall be equal to the sum of
the Excise Tax and all taxes (including any interest or penalties
imposed with respect to such taxes) imposed upon the Gross-Up Payment.
(b) If the Executive determines that a Gross-Up Payment is
required, the Executive shall so notify Eastern in writing, specifying
the amount of Gross-Up Payment required and details as to the
calculation thereof. Eastern shall, within 30 days, either pay such
Gross-Up Payment (net of applicable wage withholding) to the Executive
or furnish an unqualified opinion from Independent Tax Counsel (as
defined below), addressed to the Executive and Eastern, that there is
substantial authority (within the meaning of Section 6661 of the Code)
for the position that no Gross-Up Payment is required. "Independent
Tax Counsel" means a lawyer with expertise in the area of executive
compensation tax law, who shall be selected by the Executive and shall
be reasonably acceptable to Eastern, and whose fees and disbursements
shall be paid by Eastern.
(c) If the Internal Revenue Service or other tax authority
proposes in writing an adjustment to the income tax of the Executive
which would result in a Gross-Up Payment, the Executive shall promptly
notify Eastern in writing and shall refrain for at least thirty days
after giving such notice, if so permitted by law, from paying any tax
(including interest, penalties and additions to tax) asserted to be
payable as a result of such proposed adjustment. Before the expiration
of such period, Eastern shall either pay the Gross-Up Payment or
provide an opinion from Independent Tax Counsel to the Executive and
Eastern as to whether it is more likely than not that the proposed
adjustment would be successfully challenged if the matter were to be
litigated. If the opinion provides that a challenge would be more
likely than not to be successful if the issue were litigated, and
Eastern requests in writing that the Executive contest such proposed
adjustment, then the Executive shall contest the proposed adjustment
and shall consult in good faith with Eastern with respect to the
nature of all action to be taken in furtherance of the contest of such
proposed adjustment; provided that the Executive, after such
consultation with Eastern, shall determine in his sole discretion the
nature of all action to be taken to contest such proposed adjustment,
including (A) whether any such action shall initially be by way of
judicial or administrative proceedings, or both (B) whether any such
proposed adjustment shall be contested by resisting payment thereof or
by paying the same and seeking a refund thereof, and (C) if the
Executive shall undertake judicial action with respect to such
proposed adjustment, the court or other judicial body before which
such action shall be commenced and the court or other judicial body to
which any appeals should be taken. The Executive agrees to take
appropriate appeals of any judicial decision that would require
Eastern to pay a Gross-Up Payment, provided Eastern requests in
writing that the Executive do so and provides an opinion from
Independent Tax Counsel to the Executive and Eastern that it is more
likely than not that the appeal would be successful. The Executive
further agrees to settle, compromise or otherwise terminate a contest
with the Internal Revenue Service or other tax authority with respect
to all or a portion of the proposed adjustment giving rise to the
Gross-Up Payment, if requested by Eastern in writing to do so at any
time, in which case the Executive shall be entitled to receive from
Eastern the Gross-Up Payment. In no event shall the Executive
compromise or settle all or any portion of a proposed adjustment which
would result in a Gross- Up Payment without the written consent of
Eastern, which consent shall not be unreasonably withheld.
The Executive shall not be required to take or continue any action
pursuant to this Section 10 unless Eastern acknowledges its liability
under this Agreement in the event that the Internal Revenue Service or
other tax authority prevails in the contest. Eastern hereby agrees to
indemnify the Executive in a manner reasonably satisfactory to the
Executive for any fees, expenses, penalties, interest or additions to
tax which the Executive may incur as a result of contesting the
validity of any Excise Tax and to reimburse the Executive promptly
upon receipt of a written demand of the Executive for all costs and
expenses which the Executive may incur in connection with contesting
such proposed adjustment (including reasonable fees and disbursements
of Independent Tax Counsel).
If the Executive shall have contested any proposed adjustment as above
provided, and for so long as the Executive shall be required under the
terms of this Section 10(c) to continue such contest, Eastern shall
not be required to pay a Gross-Up Payment until there occurs a Final
Determination (as defined below) of the liability of the Executive for
the tax and any interest, penalties and additions to tax asserted to
be payable as a result of such proposed adjustment. A "Final
Determination" shall mean (A) a decision, judgment, decree or other
order by any court of competent jurisdiction, which decision,
judgment, decree or other order has become final after all allowable
appeals by either party to the action have been exhausted, the time
for filing such appeal has expired or the Executive has no right under
the terms hereof to request an appeal, (B) a closing agreement entered
into under Section 7121 of the Code or any other settlement agreement
entered into in connection with an administrative or judicial
proceeding and with the consent of the Executive, or (C) the
expiration of the time for instituting a claim for refund, or if such
a claim was filed, the expiration of the time for instituting suit
with respect thereto.
(d) In the event the Executive receives any refund from the
Internal Revenue Service or other tax authority on account of an
overpayment of Excise Tax, such amount, together with that part of any
Gross-Up Payment attributable to such amount, shall be promptly paid
by the Executive to Eastern.
11. SOURCE OF PAYMENTS. All payments provided for under this Agreement
shall be paid or provided from the general assets of Eastern and its
subsidiaries or affiliates (to the extent not provided by insurance). Eastern
shall not be required to establish a special or separate fund or other
segregation of assets to assure such payments. Nothing in this Section, however,
shall be construed as restricting Eastern's ability to establish or fund a
so-called "rabbi trust" or similar arrangement to help Eastern meet its
liabilities hereunder, provided that the establishment or funding of such a
trust or arrangement does not by its terms or by operation of law limit or
purport to limit Eastern's liabilities hereunder or otherwise adversely affect
the Executive.
12. LITIGATION EXPENSES. In the event of any litigation or other
proceeding between Eastern and the Executive with respect to the subject matter
of this Agreement and the enforcement of rights asserted in good faith
hereunder, or, in the event of termination of employment pursuant to Section
7(b) or Section 7(c) above, with respect to any other remuneration or benefits
with respect to the Executive (including, without limitation, payments or
benefits with respect to the Executive under any qualified or nonqualified
pension or retirement agreement, plan, policy, program or arrangement), Eastern
shall reimburse the Executive for all costs and expenses relating to such
litigation or other proceeding, including reasonable attorneys fees and
expenses, promptly upon receipt of a written demand therefor and regardless of
whether such litigation results in any settlement or judgment or order in favor
of any party.
Notwithstanding any provision of Massachusetts law to the contrary, in
no event shall the Executive be required to reimburse Eastern for any of the
costs and expenses relating to such litigation or other proceeding.
13. INCOME TAX WITHHOLDING. Eastern may withhold from any
payments made under this Agreement all federal, state, city or other taxes
as shall be required pursuant to any law or governmental regulation or ruling.
14. AGREEMENT NOT TO COMPETE, ETC. The Executive agrees that during the
36-month period beginning on the date the Executive's employment with Eastern
and its subsidiaries is terminated during the term hereof pursuant to Section
7(b) or Section 7(e) above, he will not, within the states in which Eastern
operates its business or in which any of Eastern's subsidiaries operates its
business, engage, either as a principal, employee, partner, consultant or
investor (other than through a 1% or smaller interest in a publicly traded
entity) in a business which competes with any such business of Eastern or its
subsidiaries.
The Executive further agrees that, following any such termination of
his employment, he will continue to comply with Eastern's policies and
procedures regarding confidential information, as that term is hereinafter
defined, and will never directly or indirectly use or disclose, except to the
Executive's attorney or as requited by judicial or regulatory process or order,
any confidential information as so defined. For purposes of this paragraph, the
term "confidential information" means any and all information (including without
limitation information related to the development and implementation of business
strategy, financial and operating forecasts, business policies and practices,
and all other information related to the future conduct of business) (i) that
the Executive has acquired in connection with his employment with Eastern and
its subsidiaries, (ii) that is not generally known or available to others with
whom Eastern or its subsidiaries do, or plan to, compete or do business, and
(iii) that pertains to the business of, or belongs to, Eastern or its
subsidiaries or a person described in clause (ii).
The Executive agrees that if, at any time, pursuant to action of any
court of competent jurisdiction, the operation of any part of this Section 14
shall be determined to be unlawful or otherwise unenforceable, then the coverage
of this Section 14 shall be deemed to be restricted as to duration, geographical
scope or otherwise, to the extent, but only to the extent, necessary to make
this paragraph lawful and enforceable in the particular jurisdiction in which
such determination is made.
The Executive acknowledges and agrees that, were he to breach the
provisions of this Section 14, the harm to Eastern and its subsidiaries would be
irreparable. The Executive therefore agrees that in the event of such a breach
or threatened breach, Eastern or its subsidiaries shall have the right to obtain
preliminary and permanent injunctive relief against any such breach without
having to post bond. Nothing herein shall prohibit Eastern or its subsidiaries
from seeking damages for a breach by the Executive of this Section 14, but
neither Eastern nor any other person shall withhold or offset any payments or
benefits due or owing to the Executive under the terms of this Agreement or
otherwise (including, without limitation, payments or benefits with respect to
the Executive under any qualified or nonqualified pension or retirement
agreement, plan, policy, program or arrangement), and all such payments and
benefits shall be promptly paid or provided to the Executive in accordance with
the terms of this Agreement (or such other agreement, plan, policy, program or
arrangement, as the case may be) without regard to any breach or alleged or
threatened breach by Executive of any provision of this Section 14.
15. ENTIRE UNDERSTANDING. This Agreement contains the entire
understanding between Eastern and the Executive with respect to the subject
matter hereof and supersedes any prior Change of Control or similar severance or
salary continuation agreement, other than the Employment Agreement, between
Eastern and the Executive.
16. SEVERABILITY. If, for any reason, any one or more of the provisions
or part of a provision contained in this Agreement shall be held to be invalid,
illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provision or part of a provision of
this Agreement not held so invalid, illegal or unenforceable, and each other
provision or part of a provision shall to the full extent consistent with law
continue in full force and effect.
17. CONSOLIDATION, MERGER OR SALE OF ASSETS. Nothing in this Agreement
shall preclude Eastern from consolidating or merging into or with, or
transferring all or substantially all of its assets to, another person that
assumes this Agreement and all obligations and undertakings of Eastern
hereunder. Upon such a consolidation, merger or transfer of assets and
assumption, the term "Eastern", as used herein shall mean such other person and
this Agreement shall continue in full force and effect.
18. SURVIVAL OF OBLIGATIONS. The obligations of Eastern under
this Agreement shall survive the termination for any reason of this
Agreement (whether such termination is by Eastern, by the Executive, upon the
expiration of this Agreement or otherwise).
19. NOTICES. All notices, requests, demands and other communications
required or permitted hereunder shall be given in writing and shall be deemed to
have been duly given if delivered or mailed, registered or certified, postage
prepaid with return receipt requested, as follows:
(a) To Eastern:
Eastern Enterprises
9 Riverside Road
Weston, MA 02493
Attention: Legal Department
(b) To the Executive:
Fred C. Raskin
9866 Bennington Drive
Sharonville, OH 45241
or to such other address as either party shall have previously specified in
writing to the other pursuant to this Section 19.
20. NO ATTACHMENT. Except as required by law, no right to receive
payments under this Agreement shall be subject to anticipation, commutation,
alienation, sale, assignment, encumbrance, charge, pledge or hypothecation or to
execution, attachment, levy or similar process or assignment by operation of
law, and any attempt, voluntary or involuntary, to effect any such action shall
be null, void and of no effect.
21. BINDING AGREEMENT. This Agreement shall be binding upon and
shall inure to the benefit of the Executive and Eastern and their respective
successors and assigns.
22. MODIFICATION AND WAIVER.
(a) Prior to the Effective Date this Agreement may be
modified, amended or terminated by the Board of Trustees of Eastern.
From and after the Effective Date this Agreement may not be modified,
amended or terminated except by an instrument in writing signed by the
parties hereto.
(b) No term or condition of this Agreement shall be deemed to
have been waived, nor shall there be any estoppel against the
enforcement of any provision of this Agreement except by written
instrument signed by the party charged with such waiver or estoppel.
No such written waiver shall be deemed a continuing waiver unless
specifically stated therein, and each such waiver shall operate only
as to the specific term or condition waived and shall not constitute a
waiver of such term or condition for the future or as to any act other
than that specifically waived.
23. HEADINGS OF NO EFFECT. The paragraph headings contained in
this Agreement are included solely for convenience of reference and shall not
in any way affect the meaning or interpretation of any of the provisions
of this Agreement.
24. GOVERNING LAW. This Agreement and its validity, interpretation,
performance and enforcement shall be governed by the laws of the Commonwealth
of Massachusetts, without giving effect to the choice of law provisions in
effect in such State.
25. MISCELLANEOUS. Reference is hereby made to the declaration of trust
establishing Eastern Enterprises dated July 18, 1929, as amended, a copy of
which is on file in the office of the Secretary of State of The Commonwealth of
Massachusetts. The name "Eastern Enterprises" refers to the trustees under said
declaration as trustees and not personally, and no trustee, shareholder, officer
or agent of Eastern Enterprises shall be held to any personal liability in
connection with the affairs of said Eastern Enterprises, but the trust estate
only is liable.
IN WITNESS WHEREOF, Eastern has caused this Agreement to be executed by
its officers thereunto duly authorized, and the Executive has signed this
Agreement, all as of the date first above written.
EASTERN ENTERPRISES
By: /s/ J. Atwood Ives
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By: /s/ Fred C. Raskin
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Fred C. Raskin