Exhibit 10.11.6
AGREEMENT
This Agreement by and between Eastern Enterprises, a Massachusetts
business trust with its principal offices in Weston, Massachusetts ("Eastern"),
Midland Enterprises, Inc., a corporation with its principal offices in
Cincinnati, Ohio ("Midland") and Jonathan M. Cook (the "Executive"), is entered
into as of the 16th day of November, 1998:
W I T N E S S E T H T H A T:
WHEREAS the Executive is an executive employee of Midland; and
WHEREAS the Board of Trustees of Eastern (the "Board") and the Board
of Directors of Midland (the "Midland Board") have determined that it is in the
best interests of Eastern, Midland, Eastern's shareholders and the Executive to
assure continuity in the management of Midland'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. Midland 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 Midland, 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 Midland, Eastern or
Eastern's subsidiaries. No purported termination of Executive shall
be deemed a termination for Cause unless the Midland Board shall have
made a determination that Cause exists nor unless, in the case of
Cause asserted under clause (a)(ii) above, the Midland 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 Midland 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 Midland or Midland 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 Midland.
(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 Midland (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 Midland or Eastern.
3. POSITION AND RESPONSIBILITIES. During the period of employment
hereunder, the Executive agrees to serve Midland 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 Midland 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, Midland (or, to the extent provided below, Eastern) shall pay,
provide and make available the following:
(a) Midland 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 Midland immediately prior
to the Effective Date.
(b) In addition to the salary payable under subsection (a)
above, Midland 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. Midland 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 Midland 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 Midland for Cause (but only if such termination is
accomplished in the manner specified in Section 2(a));
(b) by Midland 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 Midland 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 Midland of
the Executive's employment under this Agreement shall take effect only after
thirty (30) days' prior written notice by Midland 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
Midland pursuant to Section 7(b) above, Midland 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 Midland 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 Midland'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 Midland or
Eastern then in effect, Midland shall provide for substantially
equivalent alternative coverage and benefits for the Executive and
the Executive's family. Notwithstanding the foregoing, Midland 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 Midland 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 Midland in writing,
specifying the amount of Gross-Up Payment required and details as to
the calculation thereof. Midland 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 Midland,
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 Midland, and
whose fees and disbursements shall be paid by Midland.
(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 Midland 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, Midland shall either pay the
Gross-Up Payment or provide an opinion from Independent Tax Counsel
to the Executive and Midland 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 Midland 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 Midland 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 Midland, 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 Midland to pay a Gross-Up Payment, provided
Midland requests in writing that the Executive do so and provides an
opinion from Independent Tax Counsel to the Executive and Midland
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 Midland in
writing to do so at any time, in which case the Executive shall be
entitled to receive from Midland 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 Midland, 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 Midland acknowledges its liability
under this Agreement in the event that the Internal Revenue Service
or other tax authority prevails in the contest. Midland 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,
Midland 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 Midland.
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 Midland and its subsidiaries or affiliates (to the extent not
provided by insurance). Midland 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 Midland's ability to
establish or fund a so-called "rabbi trust" or similar arrangement to help
Midland 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 Midland's liabilities hereunder or otherwise
adversely affect the Executive.
12. LITIGATION EXPENSES. In the event of any litigation or other
proceeding between Midland 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), Midland
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 Ohio law to the contrary, in no
event shall the Executive be required to reimburse Midland or Eastern for any of
the costs and expenses relating to such litigation or other proceeding.
13. INCOME TAX WITHHOLDING. Midland 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 Midland, is terminated during the term
thereof 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, Midland 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 Midland or Eastern (including
any of Eastern's subsidiaries other than Midland) 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 Midland 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 Midland, respectfully, hereunder. Upon such a consolidation, merger
or transfer of assets and assumption, involving Eastern or Midland, the terms
"Eastern" and "Midland", 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 Midland
under this Agreement shall survive the termination for any reason of this
Agreement (whether such termination is by Eastern, by Midland, 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 Midland:
Midland Enterprises, Inc.
300 Pike Street
P.O. Box 1460
Cincinnati, OH 45201
Attention: Legal Department (with a copy to Eastern)
(c) To the Executive:
Jonathan M. Cook
5427 Old Course Drive
Charlotte, NC 28277
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
Midland 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 State of Ohio,
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 Midland 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
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MIDLAND ENTERPRISES, INC.
By: /s/ Robert L. Doettling
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By: /s/ Jonathan M. Cook
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Jonathan M. Cook