EXHIBIT 10.28
EMPLOYMENT AGREEMENT
AGREEMENT by and between Barnstable Water Company, a Connecticut corporation
with its principal office and place of business in Hyannis, Massachusetts (the
"Company"), Connecticut Water Service, Inc., a Connecticut corporation and
holder of all of the outstanding capital stock of the Company (the "Parent") and
George Wadsworth, a resident of Duxbury, MA (Mr. Wadsworth or the "Employee"),
dated as of February 23, 2001.
WHEREAS, the Company and the Parent have determined that it is in the best
interests of the Company and the Parent to employ Mr. Wadsworth and the Employee
desires to serve in that capacity or in such other capacity as may be reasonably
assigned to him by the Company and the Parent;
NOW, THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:
1. Employment Period.
a. The Company shall employ the Employee, and the Employee shall
serve the Company, on the terms and conditions set forth in
this Agreement, for the period commencing on or before
February 23, 2001 and ending on the fifth anniversary of such
commencement date (the "Employment Period"). Unless the
Employment Period is extended by a written agreement of the
Company and the Employee, the Employee shall be deemed an
employee-at-will, which means that Mr. Wadsworth or the
Company may terminate his employment provided, however, that
nothing herein shall release the Company or the Parent of any
obligation under Section 7.12 (b) of the Merger Agreement
between the Company and the Parent dated as of October 4,
2000. No agreement to extend the Employment Period shall be
valid unless it is in writing and signed by an Authorized
Senior Officer. For purposes of this Agreement, the term
"Authorized Senior Officer" shall mean the Chief Executive
Officer or a Vice President of the Parent.
b. If the Company and the Parent determine not to extend the
Employment Period beyond the initial five (5) year term, the
Company or the Parent shall so notify the Employee in writing
not less than six (6) months prior to the expiration of the
initial term.
2. Position and Duties.
a. During the Employment Period, the Employee shall serve as
President of the Company. He shall report to the President of
the Parent while responsible to the designated senior officers
of the Parent in the major functional areas. The Employee
shall have authority, duties and
responsibilities pertaining to the water system operations and
maintenance as are reasonably assigned by the Company.
b. During the Employment Period and any subsequent period when
the Employee is employed by the Company, and excluding any
periods of vacation and sick leave to which the Employee is
entitled, the Employee shall devote reasonable attention and
time during normal business hours to the business and affairs
of the Company and, to the extent necessary to discharge the
responsibilities assigned to the Employee under this
Agreement, use the Employee's reasonable best efforts to carry
out such responsibilities faithfully and efficiently. It shall
not be considered a violation of the foregoing for the
Employee to serve on corporate, civic or charitable boards or
committees so long as such activities do not involve a
conflict of interest with the Company or the Parent or other
"Affiliated Companies" (as hereinafter defined) or interfere
with the performance of the Employee's responsibilities as an
employee of the Company in accordance with this Agreement. For
purposes of this Agreement, "Affiliated Companies" means the
Parent and all companies controlled by, controlling or under
common control with the Parent.
3. Compensation.
a. Base Salary. During the Employment Period, the Employee shall
initially receive an annual base salary ("Annual Base Salary")
equal to $91,777, to be earned and paid at a semi-monthly rate
of $3824.04 per pay period. Commencing on January 1, 2002 and
annually thereafter the Employee shall be eligible for
compensation reviews based on performance appraisals in
accordance with the Wage and Salary Administration program of
the Parent.
b. Other Benefits. During the Employment Period and any
subsequent period when the Employee is employed by the Company
or any of its other Affiliated Companies: (i) the Employee
shall be entitled to participate in all deferred compensation,
savings and retirement plans, policies and programs of the
Company in accordance with the plans, programs and policies of
Barnstable Water Company ("Barnstable") set forth, from time
to time, in such plans or any Barnstable employee manual; and
(ii) the Employee and/or the Employee's family, as the case
may be, shall be eligible for participation in, and shall
receive all benefits under, all welfare benefit plans,
policies and programs provided by the Company in accordance
with the plans, programs and policies of Barnstable set forth,
from time to time, in such plans or any Barnstable
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employee manual; (iii) the Employee shall be approved to
attend the NAWC Annual Conferences and be eligible for
reimbursement for associated approved expenses in accordance
with the policies of the Parent during the Employment Period;
and (iv) the Company provides that the Employee will report to
the present office location in Hyannis unless Employee and
Employer mutually agree that the Employee shall report to a
different location.
c. Expenses. During the Employment Period and any subsequent
period when the Employee is employed by the Company, the
Employee shall be entitled to receive prompt reimbursement for
all reasonable authorized travel and other authorized expenses
incurred by the Employee in carrying out the Employee's duties
under this Agreement in accordance with the policies and
procedures established by the Company.
d. Fringe Benefits. During the Employment Period and any
subsequent period when the Employee is employed by the
Company, the Employee shall be entitled to fringe benefits in
accordance with the plans, programs and policies of Barnstable
set forth, from time to time, in such plans or any Barnstable
employee manual.
e. Vacation and Sick Time. During the Employment Period and any
subsequent period when the Employee is employed by the
Company, the Employee shall be entitled to paid vacation and
accrue sick time annually in accordance with the plans,
policies, and programs of Barnstable as set forth, from time
to time, in such plans or any Barnstable employee manual. The
Employee shall carry over a balance of 120 days of sick time
and no vacation time at the start of the Employment Period.
4. Termination of Employment.
a. Death or Disability. The Employee's employment shall terminate
automatically upon the Employee's death. The Company shall be
entitled to terminate the Employee's employment because of the
Employee's Disability during the Employment Period.
"Disability" means that the Employee has been unable, with or
without accommodation, for a period of 180 consecutive
business days, to perform the Employee's duties under this
Agreement, as a result of physical or mental illness or
injury. A termination of the Employee's employment by the
Company for Disability shall be communicated to the Employee
by written notice, and shall be effective on the 30th day
after receipt of such notice by the Employee (the "Disability
Effective Date"), unless the Employee returns to full-time
performance of the Employee's duties before the Disability
Effective Date.
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b. By the Company. The Company may terminate the Employee's
employment for Cause. "Cause" means: (i) the Employee's
failure to perform the duties of his employment in any
material respect after notice from the Company and failure to
cure within ten business days after delivery of such notice,
(ii) malfeasance or gross negligence in the performance of the
Employee's duties of employment, (iii) the Employee's
commission of a felony under the laws of the United States or
any state thereof (whether or not in connection with his
employment), (iv) the commission by the Employee of a fraud
upon the Company or any of the other Affiliated Companies, (v)
willful misconduct on the part of the Employee, (vi) the
Employee's breach of any of the provisions of Paragraph 8 of
this Agreement, or (vii) any other act or omission by the
Employee (other than an act or omission resulting from the
exercise by the Employee of good faith business judgment)
which is materially injurious to the financial condition or
the business reputation of the Company or any of the
Affiliated Companies.
c. By the Employee. A termination of the Employee's employment by
the Employee shall be effected by giving the Company written
notice of the termination.
d. No Waiver. The failure to set forth any fact or circumstance
in a Notice of Termination for Cause or a Notice of
Termination for Good Reason shall not constitute a waiver of
the right to assert, and shall not preclude the party giving
notice from asserting, such fact or circumstance in an attempt
to enforce any right under or provision of this Agreement.
e. Date of Termination. The "Date of Termination" means the date
of the Employee's death, the Disability Effective Date, the
date on which the termination of the Employee's employment by
the Company for Cause is effective, or the date that is 60
days after the date on which the Employee gives the Company
notice of a termination of employment, as the case may be.
5. Obligations of the Company upon Termination.
a. Other Than for Cause or Death. If, during the Employment
Period, the Company terminates the Employee's employment,
other than for Cause or death, the Company shall pay the
amounts described in subparagraph (i) below to the Employee in
a lump sum in cash within 30 days after the Date of
Termination or at the employee's option in a manner described
in paragraph 3(a), reduced by any payment to the employee due
to disability coverage in 3(b), through the remainder of the
Employment Period. The
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payments provided pursuant to this subparagraph (a) of Section
5 are intended as either or both severance pay or liquidated
damages for a termination of the Employee's employment by the
Company other than for Cause or death and shall be the sole
and exclusive remedy therefor.
i.) The amounts to be paid in a lump sum as described above
are:
A. The Employee's accrued but unpaid cash compensation
(the "Accrued Obligations"), which shall equal the
sum of (1) any portion of the Employee's Annual Base
Salary through the Date of Termination that has not
yet been paid; (2) any compensation previously
deferred by the Employee (together with any accrued
interest or earnings thereon) that has not yet been
paid; and (3) any accrued but unpaid vacation pay.
B. Severance pay in an amount equal to the Employee's
annual Base Salary for the period, if any, from the
Date of Termination to the end of the Employment
Period set forth in Section 1 hereof.
(ii) For the period, if any, from the Date of Termination to
the end of the Employment Period set forth in Section 1
hereof, the Employee shall continue to be entitled to
participate in such employee welfare benefit plans,
within the meaning of Section 3(1) of the Employee
Retirement Income Security Act of 1974, as amended,
maintained by the Company in which the Employee shall be
a participant on the Date of Termination, subject to the
terms and conditions of such employee welfare benefit
plans as may be in effect from time to time during such
period under this Agreement, with benefits based upon
compensation equal to the Employee's Annual Base Salary.
To the extent that such benefits shall not be payable or
provided under any such employee welfare benefit plan,
the Company shall pay or provide such benefits on an
individual basis. Any medical, dental, health or other
employee welfare benefits provided for hereunder shall be
secondary to any comparable benefits provided by another
employer.
b. Cause; Other than for Good Reason or Death. If the Employee's
employment is terminated by the Company for Cause during the
Employment Period, or for any reason after the Employment
Period, or if the Employee voluntarily terminates employment,
the Company shall pay the Employee the Annual Base Salary
through the Date of Termination and the amount of any
compensation previously deferred by the Employee (together
with any accrued interest or earnings thereon), in
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each case to the extent not yet paid, and the Company shall
have no further obligations under this Agreement.
c. By Reason of Death. If the Employee's employment is terminated
by reason of the Employee's death at any time, this Agreement
shall terminate without further obligations to the Employee's
legal representatives under this Agreement, other than for
payment of the Accrued Obligations in accordance with the
plans, practices, programs and policies of Barnstable set
forth, from time to time, in such plans or any Barnstable
employee manual.
6. Obligations of the Employee Upon Termination. The compensation due the
Employee pursuant to Section 5 of this Agreement shall be reduced by
any unpaid balance due to the Company from any outstanding employee
loan(s) issued by Barnstable Water Company.
7. Non-exclusivity of Rights. Nothing in this Agreement shall prevent or
limit the Employee's future participation in any plan, program, policy
or practice provided by the Company or any of the other Affiliated
Companies for which the Employee may qualify, nor shall anything in
this Agreement limit or otherwise affect such rights as the Employee
may have under any contract or agreement with the Company or any of the
other Affiliated Companies. Vested benefits and other amounts that the
Employee is otherwise entitled to receive under any plan, policy or
program of, or any contract or agreement with, the Company or any of
the other Affiliated Companies on or after the Date of Termination
shall be payable in accordance with such plan, policy, program,
contract or agreement, as the case may be, except as otherwise
explicitly modified by this Agreement.
8. Full Settlement. In no event shall the Employee be obligated to seek
other employment or take any other action by way of mitigation of the
amounts payable to the Employee under any of the provisions of this
Agreement, but if the Employee secures other employment, any employee
welfare benefits the Company is required to provide to the Employee
following termination of the Employee's employment shall be secondary
to those provided by another employer (if any).
9. Confidential Information. The Employee understands that in the course
of the Employee's employment by the Company, the Employee will receive
or have access to confidential information concerning the business or
purposes of the Company and any of the other Affiliated Companies and
which the Company or any of the other Affiliated Companies desire to
protect. Such confidential information shall be deemed to include, but
not be limited to, the Company's customer lists and information, and
employee lists, including, if known, personnel information and data.
The Employee agrees that the Employee will not, at any time during the
period ending two years after the Date of Termination, reveal to anyone
outside the Company or any of the other Affiliated
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Companies or use for the Employee's own benefit any such information
without specific written authorization by the Company or the Parent
10. Insurance. The Company shall have the right at its own cost and expense
to apply for and to secure in its own name, or otherwise, life, health
or accident insurance or any or all of them covering the Employee, and
the Employee agrees to submit to the usual and customary medical
examination and otherwise to cooperate with the Company in connection
with the procurement of any such insurance, and any claims thereunder.
11. Release. As a condition of eligibility for severance payments or
benefits provided for in Paragraph 5(a) of this Agreement, at the
request of the Company or the Parent, the Employee shall execute and
deliver for the benefit of the Company and the Parent, and any of the
Affiliated Companies, a general release in the form set forth in
Attachment A, and such release shall become effective in accordance
with its terms the failure or refusal of the Employee to sign such a
release or the revocation of such a release shall cause the termination
of any and all obligations of the Company and the Parent to make
payments or provide benefits hereunder, and the forfeiture of the right
of the Employee to receive any such payments and benefits. The Employee
acknowledges that the Company and the Parent have advised the Employee
to consult with an attorney prior to signing this Agreement and that
the Employee has had an opportunity to do so.
12. Regulatory Limitation. Notwithstanding any other provision of this
Agreement, the Company shall not be obligated to make, and the Employee
shall have no right to receive, any payment, benefit or amount under
this Agreement which would violate any law, regulation or regulatory
order applicable to the Company, CWC or the Parent at the time such
payment, benefit or amount is due ("Prohibited Payment"). If and to the
extent the Company shall at a later date be relieved of the restriction
on its ability to make any Prohibited Payment, then at such time the
Company, CWC or the Parent shall promptly make payment of any such
amounts to the Employee. The parties hereto acknowledge that as of the
date of this Agreement, no payment, benefit or amount payable under
this Agreement would be a Prohibited Payment.
13. Notices. All notices under this Agreement shall be in writing and shall
be deemed effective when delivered in person to the Employee or to the
Secretary of the Company and the Parent, or if mailed, postage prepaid,
registered or certified mail, addressed, in the case of the Employee,
to the Employee's last known address as carried on the personnel
records of the Company, and, in the case of the Company and the Parent,
to the corporate headquarters, attention of the Secretary, or to such
other address as the party to be notified may specify by notice to the
other party.
14. Successors and Assigns.
a. Assignment by Employee. This Agreement is personal to the
Employee and shall not be assignable by the Employee.
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b. Assignment by the Company. This Agreement shall inure to the
benefit of and be binding upon the Company and the other
Affiliated Companies and their respective successors and
assigns. As used in this Agreement, the "Company" and the
other Affiliated Companies shall mean both the Company and the
other Affiliated Companies, respectively, and any such
successor that assumes and agrees to perform this Agreement,
by operation of law or otherwise.
15. Arbitration. Any dispute which may arise between the parties hereto
may, if both parties agree, be submitted to binding arbitration in the
State of Connecticut in accordance with the Rules of the American
Arbitration Association; provided that any such dispute shall first be
submitted to the Company's Board of Directors in an effort to resolve
such dispute without resort to arbitration.
16. Severability. If any of the terms or conditions of this Agreement shall
be declared void or unenforceable by any court or administrative body
of competent jurisdiction, such term or condition shall be deemed
severable from the remainder of this Agreement, and the other terms and
conditions of this Agreement shall continue to be valid and
enforceable.
17. Amendment. This Agreement may be modified or amended only by an
instrument in writing executed by the parties hereto.
18. Construction. This Agreement shall supersede and replace all prior
agreements and understandings between the parties hereto on the subject
matter covered hereby. This Agreement shall be governed and construed
under the laws of the State of Connecticut. Words of the masculine
gender mean and include correlative words of the feminine gender.
Paragraph headings are for convenience only and shall not be considered
a part of the terms and provisions of the Agreement.
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IN WITNESS WHEREOF, the Company and the Parent have caused this Agreement to be
executed by a duly authorized officer, and the Employee has hereunto set the
Employee's hand, as of the date first above written.
THE BARNSTABLE WATER COMPANY
By: /s/ George Wadsworth
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George Wadsworth, President
CONNECTICUT WATER SERVICE, INC.
By: /s/ David C. Benoit
-------------------------------
David C. Benoit, Vice President
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ATTACHMENT A
RELEASE
We advise you to consult an attorney before you sign this Release. You have
until the date which is seven (7) days after the Release is signed and returned
to the Water Company ("the Company") to change your mind and revoke your
Release. Your Release shall not become effective or enforceable until after that
date.
In consideration for the severance benefits and payments provided under your
Employment Agreement dated February ___, 2001 with the Company and Connecticut
Water Service, Inc. ("the Parent"), and more specifically enumerated in Exhibit
1 hereto, by your signature below you agree to accept such benefits and not to
make any claims of any kind against the Company, its past and present and future
Parent corporations, subsidiaries, divisions, subdivisions, affiliates and
related companies or their successors and assigns, including without limitation
the Parent, or any and all past, present and future Directors, officers,
fiduciaries or employees of any of the foregoing (all parties referred to in the
foregoing are hereinafter referred to as the "Releasees") before any agency,
court or other forum, and you agree to release the Releasees from all claims,
known or unknown, arising in any way from any actions taken by the Releasees up
to the date of this Release, including, without limiting the foregoing, any
claim for wrongful discharge or breach of contract or any claims arising under
the Age Discrimination in Employment Act of 1967, Title VII of the Civil Rights
Act of 1964, the Americans with Disabilities Act of 1990, the Employee
Retirement Income Security Act of 1974, Connecticut's Fair Employment Practices
Act or any other federal, state or local statute or regulation and any claim for
attorneys' fees, expenses or costs of litigation.
THE PRECEDING PARAGRAPH MEANS THAT BY SIGNING THIS RELEASE YOU WILL HAVE WAIVED
ANY RIGHT YOU MAY HAVE TO BRING A LAWSUIT OR MAKE ANY LEGAL CLAIM AGAINST THE
RELEASEES BASED ON ANY ACTIONS TAKEN BY THE RELEASEES UP TO THE DATE OF THIS
RELEASE.
By signing this Release, you further agree as follows:
1.) You have read this Release carefully and fully understand its terms;
2.) You have had at least twenty-one (21) days to consider the terms of the
Release;
3.) You have seven (7) days from the date you sign this Release to revoke
it by written notification to the Company. After this seven-(7) day
period, this Release is final and binding and may not be revoked;
4.) You have been advised to seek legal counsel and have had an opportunity
to do so;
5.) You would not otherwise be entitled to the severance benefits provided
under your Employment Agreement with the Company and the Parent had you
not agreed to waive any right you have to bring a lawsuit or legal
claim against the Releasees; and
6.) Your agreement to the terms set forth above is voluntary.
By signing this release, you do not agree to release the Company from future
performances of its obligations to pay or provide severance benefits in
accordance with your Employment Agreement and any failure to pay or provide such
benefit will void this release.
Name:
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Signature: Date:
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Received by: Date:
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