Exhibit 10.6
AGREEMENT
This Agreement by and between Eastern Enterprises, a Massachusetts
business trust with its principal offices in Weston, Massachusetts ("Eastern"),
Boston Gas Company, a corporation with its principal offices in Boston,
Massachusetts ("Boston Gas") and Chester R. Messer (the "Executive"), is entered
into as of the 22nd day of July, 1998:
WITNESSETH THAT:
WHEREAS the Executive is an executive employee of Boston Gas; and
WHEREAS the Board of Trustees of Eastern (the "Board") and the Board of
Directors of Boston Gas (the "Boston Gas Board") have determined that it is in
the best interests of Eastern, Boston Gas, Eastern's shareholders and the
Executive to assure continuity in the management of Boston Gas'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. Boston Gas 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 Boston Gas, 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 Boston Gas, Eastern or
Eastern's subsidiaries. No purported termination of Executive shall be
deemed a termination for Cause unless the Boston Gas Board shall have
made a determination that Cause exists nor unless, in the case of Cause
asserted under clause (a)(ii) above, the Boston Gas 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
Boston Gas 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; or
(v) Eastern sells or otherwise disposes of all or
substantially all of its stock of Boston Gas or Boston Gas
sells or otherwise disposes of all or substantially all of
its assets, excluding in either case any transaction
resulting in beneficial ownership of not less than fifty
percent (50%) of the assets or business so transferred or not
less than fifty percent (50%) 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.
(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 the long term disability program maintained for
employees of Boston Gas.
(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 Boston Gas (or by Eastern, in the
case of any employee or executive benefit, benefit program, incentive
program, or perquisite maintained 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 Boston Gas or Eastern.
3. POSITION AND RESPONSIBILITIES. During the period of employment
hereunder, the Executive agrees to serve Boston Gas 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 Boston Gas 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 under
this Agreement.
5. COMPENSATION AND BENEFITS. During the Executive's employment
under this Agreement, Boston Gas (or, to the extent provided below, Eastern)
shall pay, provide and make available the following:
(a) Boston Gas 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 Boston Gas immediately prior to the
Effective Date.
(b) In addition to the salary payable under subsection (a)
above, Boston Gas and 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. Boston Gas 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 Boston Gas 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 Boston Gas for Cause (but only if such
termination is accomplished in the manner specified in Section 2(a));
(b) by Boston Gas 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 Boston Gas 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 Boston Gas of
the Executive's employment under this Agreement shall take effect only after
thirty (30) days' prior written notice by Boston Gas 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 Boston
Gas pursuant to Section 7(b) above, Boston Gas 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 target benefit or benefits under the
Executive's 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 Boston Gas 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 Boston Gas's or 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
Boston Gas or Eastern then in effect, Boston Gas shall provide for
substantially equivalent alternative coverage and benefits for the
Executive and the Executive's family. Notwithstanding the foregoing,
Boston Gas 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 Boston Gas or
Eastern to pay severance in addition to the payments and benefits
otherwise provided for in this Agreement.
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 any 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 Boston Gas in writing,
specifying the amount of Gross-Up Payment required and details as to
the calculation thereof. Boston Gas 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 Boston Gas,
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 Boston Gas, and whose fees and
disbursements shall be paid by Boston Gas.
(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 Boston Gas 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, Boston Gas shall either pay the Gross-Up Payment or
provide an opinion from Independent Tax Counsel to the Executive and
Boston Gas 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
Boston Gas 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 Boston Gas 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 Boston Gas, 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 Boston Gas to pay a
Gross-Up Payment, provided Boston Gas requests in writing that the
Executive do so and provides an opinion from Independent Tax Counsel to
the Executive and Boston Gas 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 Boston Gas in writing to do so at any time, in which case the
Executive shall be entitled to receive from Boston Gas 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 Boston Gas, 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 Boston Gas acknowledges its
liability under this Agreement in the event that the Internal Revenue
Service or other tax authority prevails in the contest. Boston Gas
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, Boston Gas 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 Boston Gas.
11. SOURCE OF PAYMENTS. Except as provided at Section 8 above, all
payments provided for under this Agreement shall be paid or provided from the
general assets of Boston Gas and its subsidiaries or affiliates (to the extent
not provided by insurance). Boston Gas 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 Boston Gas's
ability to establish or fund a so-called "rabbi trust" or similar arrangement to
help Boston Gas 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 Boston Gas's liabilities hereunder or otherwise
adversely affect the Executive.
12. LITIGATION EXPENSES. In the event of any litigation or other
proceeding between Boston Gas or 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), Boston
Gas 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 Boston Gas or Eastern for
any of the costs and expenses relating to such litigation or other proceeding.
13. INCOME TAX WITHHOLDING. Boston Gas and 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, including Boston Gas, is terminated during the term hereof
pursuant to Section 7(b) or Section 7(c) 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 required 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, Boston Gas and the Executive with respect to the
subject matter hereof and supersedes any prior Change of Control or similar
severance or salary continuation agreement between Boston Gas or Eastern
(including any of Eastern's subsidiaries other than Boston Gas) 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 or Boston Gas 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 or Boston
Gas, respectfully, hereunder. Upon such a consolidation, merger or transfer of
assets and assumption, involving Eastern or Boston Gas, the terms "Eastern" and
"Boston Gas", respectfully, 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 and Boston Gas
under this Agreement shall survive the termination for any reason of this
Agreement (whether such termination is by Eastern, by Boston Gas, 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 Boston Gas:
Boston Gas Company
One Beacon Street
Boston, MA 02108
Attention: Legal Department (with a copy to Eastern)
(c) To the Executive:
Chester R. Messer
60 Selwyn Road
Belmont, MA 02478
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 (subject
to Section 25(a)) and shall inure to the benefit of the Executive, Eastern and
Boston Gas 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.
(a) Eastern shall be liable under this Agreement solely with respect to
its obligations under Sections 5, 8, 9 and 21 hereof.
(b) 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 and Boston Gas have caused this Agreement to be
executed by their respective 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 CEO
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BOSTON COMPANY
By: /s/ Joseph F. Bodanza SVP & Treasurer
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By: /s/ Chester R. Messer
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Chester R. Messer