EXHIBIT 10(ee)
[NATIONAL GRID USA LETTERHEAD]
Michael E. Jesanis
7 Valleywood Road
Hopkinton, MA 01748
Effective January 1, 2007
Dear Mike:
CONSULTING AGREEMENT
We are proposing the following consulting arrangements with National Grid USA
("NATIONAL GRID" and, together with its affiliates, the "GROUP") following your
separation from employment with the Group. On your agreement, this letter
becomes your CONSULTING AGREEMENT with National Grid.
1 CONSULTING ARRANGEMENT
(a) ENGAGEMENT. Effective January 1, 2007, you will serve as a consultant to
the Group. Your term as consultant will continue through June 30, 2007
(or, if earlier, the termination of the consulting term in accordance with
Section 4 hereof) (the "CONSULTING PERIOD").
(b) SERVICES. During the Consulting Period you agree to be available to
perform the following services, to the extent requested by National Grid:
(i) assisting the Group with the closing of the KeySpan acquisition; (ii)
making yourself reasonably available and cooperating with reasonable
requests from the Group for information concerning any business or legal
matters involving facts or events relating to the Group that may be within
your knowledge; and (iii) providing such other services as reasonably
requested from time to time by National Grid.
You will use good faith efforts to perform the foregoing services to the
best of your ability, and at a standard and at the times reasonably
requested from time to time by National Grid. For the avoidance of doubt,
during the Consulting Period you may serve on charitable boards or
committees; with the prior approval of National Grid (such approval not to
be unreasonably withheld or delayed), serve as a non-executive director on
corporate boards or committees of companies that are not competitive with
the Group; deliver lectures and teach at educational institutions; and
manage personal investments (collectively, "PERSONAL ACTIVITIES"),
provided that such activities do not individually or in the aggregate
interfere with your obligations under this Consulting Agreement.
(c) INDEPENDENT CONTRACTOR. You agree that you are performing the consulting
services as an independent contractor and not as an employee of any member
of the Group. You will be responsible for all taxes and other
non-reimbursable expenses attributable to the rendition of your consulting
services. Nothing in this Consulting Agreement shall be deemed to
constitute a
partnership or joint venture between any member of the Group and you, nor
shall anything in this Consulting Agreement be deemed to constitute the
Group or you as the agent of the other.
2 YOUR CONSULTING FEES
(a) CONSULTING FEE. During each month of the Consulting Period during which
you have provided services (or were reasonably available to provide
services) to the Group (and provided you are not in breach of your
obligations under the Separation and Release Agreement dated as of 31
December 2006 ("SEPARATION AND RELEASE AGREEMENT") or the Settlement and
Compromise Agreement dated as of 17 January 2007 ("SETTLEMENT AND
COMPROMISE AGREEMENT"), you will receive a monthly consulting fee of
$216,568. However, in the event that you become employed or engaged in any
activity of a commercial nature (excluding, for the avoidance of doubt,
any Personal Activities) prior to the end of the Consulting Period, this
monthly consulting fee will be reduced dollar-for-dollar by the amount of
the aggregate annual base salary (calculated as if such compensation were
paid in equal monthly amounts) that you receive or are eligible to receive
from your new employment or engagement, to the extent attributable to
services performed for the new entity during the Consulting Period.
You agree to promptly disclose to National Grid your commencement of any
new employment or engagement and the annual base salary thereof, and to
provide such substantiation as National Grid may reasonably request to
determine the amount of the reduction applicable to the monthly consulting
fee. For the avoidance of doubt, to the extent the actual amount of the
monthly consulting fee that is paid to you after giving effect to such
reduction is incorrect for any reason (in more than a de minimis amount),
the party who should have paid more (National Grid) or the party who
should have received less (yourself), as the case may be, shall promptly
remit the applicable amount to the other.
Your monthly consulting fee will be prorated for any partial months in the
Consulting Period and will be payable in arrears no later than the end of
each applicable month of the Consulting Period.
(b) BUSINESS EXPENSES. You will be reimbursed for all reasonable business
expenses you incur at the request of National Grid in performing your
services under this Consulting Agreement, subject to substantiating such
expenses in accordance with National Grid's reimbursement policies.
3 CERTAIN COVENANTS
(a) CONFIDENTIAL INFORMATION. You understand and agree that, in the course of
your consulting services with National Grid, you may acquire confidential
business information and trade secrets concerning business, financial,
technical and other information and material pertaining to the Group,
including the Group's operations, processes, technology, contracts,
personnel, advertiser and customer lists, future plans and methods of
doing business, which are the property of the Group and which involve the
Group and the Group's employees, which information you understand and
agree would be extremely damaging to the Group if disclosed to a
competitor or a third party (collectively, "CONFIDENTIAL INFORMATION").
You agree to forever keep such Confidential Information secret and
confidential, and that you shall not communicate
or disclose to any third party, or use for your own account, without prior
written consent of National Grid, any of the aforementioned Confidential
Information. The restrictions set forth in this Section 3(a) will not,
however, apply to Confidential Information which (i) becomes public other
than through unauthorized disclosure by you, (ii) is lawfully and in
good-faith made available to you outside the scope of your consulting
services by a third party who did not derive it from the Group, and who
imposes no obligation of confidence on you, (iii) was already known to you
at the time it was disclosed to you, or (iv) is required to be disclosed
by a governmental authority, regulatory body, or by order or subpoena of a
court of competent jurisdiction, provided that prior to such disclosure,
you shall, except as otherwise prohibited by law, give National Grid
reasonable advance notice and an opportunity to take adequate measures to
preserve the confidential nature of the information sought by such
authority, body or court. You agree that the Group would be irreparably
harmed by any violation, or threatened violation, of the prohibited
disclosure of trade secrets and that, therefore, National Grid shall be
entitled to an injunction prohibiting you from any violation or threatened
violation of such disclosure restrictions.
(b) RETURN OF PROPERTY. On or prior to the last day of the Consulting Period,
you agree to return to National Grid all Group documents (whether in hard
copy, soft copy or contained in a personal electronic device) and other
materials (including office keys or access cards, company provided credit
cards, laptop, etc.) that you have received or obtained from the Group
during the course of your consulting with National Grid or that otherwise
belong to the Group. You will not retain any hard or soft copies of any
materials or other information that belongs to the Group.
(c) INTELLECTUAL PROPERTY RIGHTS. You agree to assign to National Grid all
right, title and interest in and to any inventions made, originated or
developed as part of the consulting services with National Grid together
with any other intellectual property rights directly arising out of the
provision of the consulting services and further agree to assist National
Grid (at National Grid's expense) in connection with any application for
registration of intellectual property and to do all such acts and things
at National Grid's expense as its legal advisers may advise are necessary
or desirable in connection with any assignment or assistance.
(d) INDEMNIFICATION. To the extent an unrelated third party institutes any
action, suit or proceeding against you, National Grid agrees to indemnify
you, defend you, and hold you harmless against all losses, liabilities,
expenses, and costs (including reasonable attorney's fees, judgments,
fines, and amounts paid in settlement) actually and reasonably incurred by
you in connection with any threatened, pending, contemplated, or future
action, suit, or proceeding to which you are, or are threatened to be,
made a party arising from or relating to consulting services that National
Grid directs you to provide under this Consulting Agreement, provided that
you promptly notify National Grid of any such action, suit or proceeding,
and submit to and cooperate with any reasonable procedures that the Group
establishes in connection with the defense of such action, suit or
proceeding and/or to avoid duplication of expenses or costs in connection
with such defense. Notwithstanding the foregoing, you shall not be
indemnified for actions arising from or relating to your bad faith, gross
negligence or gross misconduct. You shall not be liable to National Grid
for any losses, liabilities, expenses, or costs that National Grid may
incur in connection with your performance of services under this
Consulting Agreement unless caused by your bad faith, gross negligence, or
gross misconduct.
(e) COOPERATION. During the Consulting Period and continuing thereafter, you
shall cooperate and assist the Group in any dispute, proceeding or
investigation in which the Group is involved and in which you have been
involved or which involves facts or events that existed or arose during
the period of your employment or consultancy with National Grid relating
to the business of the Group that may be within your actual knowledge.
Such cooperation and assistance shall include (in each case upon being
given reasonable advance notice and subject to your reasonable
availability) providing information, documents, submitting to depositions
and providing testimony, provided that you shall not be obligated to
provide any such cooperation or assistance in a dispute, proceeding or
investigation between the Group and any person or entity who is your
employer after the Consulting Period. National Grid will reimburse all
reasonable out-of-pocket expenses incurred by you in connection with
fulfilling your obligations under this Section 3(e).
4 EARLY TERMINATION OF THIS AGREEMENT
(a) MUTUAL EARLY TERMINATION. You and National Grid shall have the right to
terminate this Consulting Agreement at any time prior to the end of the
Consulting Period by mutual agreement.
(b) EARLY TERMINATION BY NATIONAL GRID. National Grid shall have the right to
terminate this Consulting Agreement prior to the end of the Consulting
Period if:
(i) the Board of Directors of National Grid determines that you have
repeatedly failed to perform the consulting services requested of
you under this Agreement, provided that National Grid shall have
provided at least 30 days prior notice of its intent to terminate
(which notice shall also describe how you have failed to perform);
and provided further that if the failure is capable of cure and you
cure such failure to the reasonable satisfaction of the Board within
30 days after receipt of the termination notice, such notice shall
be cancelled; or
(ii) you breach any applicable provision of this Consulting Agreement,
the Separation and Release Agreement or the Settlement and
Compromise Agreement, excluding any immaterial or inadvertent breach
that is not in bad faith; or
(iii) you commit any act that would constitute gross misconduct or you are
convicted of, or plead nolo contendere to, any felony or a
misdemeanor involving fraud, dishonesty, or moral turpitude; or
(iv) National Grid in its sole discretion determines to terminate the
Consulting Agreement prior to the end of the Consulting Period by
paying you, in a lump sum, the amount that would have been payable
had you served the full Consulting Period, provided that, National
Grid shall provide at least 30 days prior notice of such intent to
terminate.
The Consulting Period will automatically terminate upon your death.
(c) EARLY TERMINATION BY YOU. You shall have the right to terminate this
Consulting Agreement prior to the end of the Consulting Period if National
Grid breaches any applicable provision of
this Consulting Agreement, excluding any immaterial or inadvertent breach
that is not in bad faith.
(d) For the avoidance of doubt, (i) the early termination rights under this
Section 4 are in addition to any other rights or remedies the affected
party may have under applicable law and (ii) the obligations under Section
3 shall survive termination of this Consulting Agreement.
5 GENERAL PROVISIONS
(a) DISPUTE RESOLUTION. The arbitration requirements set forth in Section 16
of the Separation and Release Agreement are incorporated herein by
reference and shall apply to any disputes under this Consulting Agreement.
(b) GOVERNING LAW. THIS CONSULTING AGREEMENT WILL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAW OF MASSACHUSETTS APPLICABLE TO CONTRACTS MADE
AND TO BE PERFORMED ENTIRELY WITHIN THAT STATE.
(c) ENTIRE AGREEMENT. This Consulting Agreement, together with the Separation
and Release Agreement and the Settlement and Compromise Agreement, sets
forth the entire agreement between you and National Grid and supersedes
any and all prior oral or written agreements or representations between
us. This Consulting Agreement will automatically terminate without any
obligation (payment or otherwise) hereunder in the event that the
Separation and Release Agreement is revoked prior to the Effective Date
(as defined therein).
(d) SEVERABILITY. If any provision of this Consulting Agreement is found by
any court of competent jurisdiction (or legally empowered agency) to be
illegal, invalid or unenforceable for any reason, then (1) the provision
will be amended automatically to the minimum extent necessary to cure the
illegality or invalidity and permit enforcement and (2) the remainder of
this Consulting Agreement will not be affected.
(e) CONSIDERATION. This Consulting Agreement is in consideration of the mutual
covenants contained in it. You and the Group acknowledge the receipt and
sufficiency of the consideration to this Consulting Agreement and intend
this Consulting Agreement to be legally binding.
(f) AMENDMENTS AND WAIVERS. This Consulting Agreement may not be altered,
amended or modified except by a further writing signed by you and National
Grid. No failure or delay by you or the Group to exercise any right or
remedy under this Consulting Agreement will operate as a waiver, and no
partial exercise of any right or remedy will preclude any further
exercise.
(g) THIRD PARTY BENEFICIARIES. This Consulting Agreement may not be assigned
by you without National Grid's consent. This Consulting Agreement does not
confer any rights, remedies, obligations or liabilities to any entity or
person other than you and National Grid and your and National Grid's
permitted successors and assigns.
(h) NOTICES. All notices, requests and other communications under this
Consulting Agreement, the Separation and Release Agreement and the
Settlement and Compromise Agreement must be in writing and will be deemed
given (1) on the business day sent, when delivered by hand or facsimile
transmission (with confirmation) during normal business hours, (2) on the
business day after the business day sent, if delivered by a nationally
recognized overnight courier or (3)
on the third business day after the business day sent if delivered by
registered or certified mail, return receipt requested, in each case to
the following address or number (or to such other addresses or numbers as
may be specified by notice that conforms to this Section 5(h):
If to you, to the address specified on the first page of this Agreement,
with a copy to:
Arthur S. Meyers
Partner
Seyfarth Shaw LLP
Two Seaport Lane - Suite 300
Boston, MA 02210
Fax: (617) 790-5305
If to the Company, to:
National Grid plc
1-3 Strand
London WC2N 5EH
Attn: Group HR Director
Fax: 011 44 20 7004 3153
(i) COUNTERPARTS. This Consulting Agreement may be executed in counterparts,
each of which will constitute an original and all of which, when taken
together, will constitute one agreement
If this Consulting Agreement properly sets forth our understanding, please sign
both copies of this agreement, keep one copy for your records and return one to
us.
Yours sincerely
NATIONAL GRID USA
By /s/ Ruth Bramson Date: January 17, 2007
----------------
Name: Ruth Bramson
Title: Senior V.P
Agreed and accepted:
/s/ Michael E. Jesanis Date: January 17, 2007
MICHAEL E. JESANIS