Exhibit 10.5
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement"), effective as of the 1st day
of January, 1997, is entered into by and between The Brooklyn Union Gas Company,
a New York corporation, hereinafter referred to by name or either as the
"Company" or "Employer," and David L. Phillips, hereinafter referred to as
"Employee."
ARTICLE 1
TERM
Subject to the provisions for termination hereinafter set forth, the term
of this Agreement shall commence on the effective date hereof and expire on
January 1, 2000; provided, however, that this Agreement shall extend for
successive one-year renewal terms thereafter unless terminated by six (6) months
prior written notice from one party to the other prior to the termination of the
initial or any renewal term. The initial term together with any renewal terms
hereto are hereinafter referred to as the "Term".
ARTICLE II
EXECUTIVE DUTIES
Subject to the terms and conditions set forth herein, the Company hereby
employs Employee, and Employee hereby accepts employment by the Company, to
serve as Senior Vice President, Strategic Planning & Corporate Development of
the Company, and to perform the duties attendant to such position. Employee
shall perform such duties for the position described herein in a manner
consistent with the performance expectations and standards established and
communicated to the
Employee by the Company from time to time. It is expressly understood, and
agreed, that Employee shall inure to the position described hereinabove at the
ultimate parent company level upon the formation of a Holding Company (the
"Holding Company"), such Holding Company is proposed to be organized to
facilitate and hold the surviving entity resulting from the pending merger of
the Company and Long Island Lighting Company ("LILCO"). While serving the
Company, Employee shall report to its Chairman of the Board. Following formation
of the Holding Company, and completion of the pending merger with LILCO,
Employee shall report to the President & Chief Operating Officer of the Holding
Company for a period of one (1) year following completion of such merger, and
thereafter shall report to its Chief Executive Officer for the remainder of the
Term. Employee shall perform such duties, assume such responsibilities and
devote such time, attention and energy to the business of the Company and
corporations affiliated with the Company as the Board shall from time to time
require, and shall not during the term of his employment hereunder be engaged in
any other business activity pursued for gain, profit and other pecuniary
advantage if such activity materially interferes with Employee's duties and
responsibilities hereunder. However, the foregoing limitations shall not be
construed as prohibiting Employee from making personal investments (including,
but not limited to, the trading of natural gas, crude or electricity futures
contracts on the NYMEX, or other private investment activity in publicly traded
stocks of energy related concerns on any public exchange) in such form or manner
as will neither require him materially to participate in the operation or
affairs of the companies or enterprises in which such investments are made nor
violate the terms of The Brooklyn Union Gas Company's Statement of Ethical
Business Conduct and of Article VII hereof. Employee may also participate in
social, civic, charitable, religious, educational or professional associations
so long as such participation would not materially detract from Employee's
ability to perform his duties under this Agreement.
ARTICLE III
COMPENSATION AND BENEFITS Employee's compensation shall be:
(a) The minimum sum of $206,000 per year (the "Base Compensation") payable
in equal monthly installments on or about the 15th day of each month during the
Term hereof. With respect to increases in Base Compensation based upon merit,
performance, cost of living, or otherwise, such Base Compensation shall be
subject to review every six (6) months during the first eighteen (18) months
hereof, and annually thereafter on a schedule consistent with all other senior
executive officers of the Company.
(b) An annual incentive compensation bonus target of 35% up to an amount
not to exceed 70% of Base Compensation for each annual period during the Term
(the "Incentive Compensation"), determined and payable in accordance with the
Company's Corporate Incentive Compensation Plan as it may exist from time to
time. The Incentive Compensation shall be paid to Employee pro rata based on the
number of days of employment in the year for any partial years of employment
hereunder, except that, for the first year of this Term any Incentive
compensation due Employee at the close of fiscal 1997 shall be calculated and
paid on a full year basis as if (i) Employee had initiated employment effective
with the fiscal year of the Company on October 1, 1996 and (ii) the Base
Compensation (for purposes of calculation of each Incentive Compensation ) had
begun on October 1, 1996 as well. The Employee shall also participate in all
applicable Deferred Compensation Plans of the Company, including, but not
limited to, such plan as adopted on November 15, 1995 entitled the "Long-Term
Performance Incentive Compensation Plan" on a basis no less favorable than
similarly appointed or elected senior officers of the Company, or subsequently,
the Holding Company.
(c) In addition to the Incentive Compensation program described above, the
Company shall tender to Employee immediately upon execution of this Agreement a
signing bonus together comprised of (i) a cash payment in the sum of $50,000,
(ii) 20,000 non-qualified stock options of the Company, exercisable at the
contemporary market price per share on the date of issuance (the "Signing
Bonus") based upon (i) exceptional performance demonstrated by Employee as a
Consultant to the Company in fiscal 1996, and (ii) Employee's contribution to
future earnings per share while serving in his Consultant capacity, such
contribution being in the best financial interest of the Company and its
shareholders.
(d) During the Term, the Company shall pay for and the Employee shall
receive all employee benefits as provided to all other senior officers of the
Company, pursuant to the Company's Personnel Policies and Procedures Manual, and
other Benefit Plan publications, as then adopted and in effect. Definitive
"Change of Control" provisions are provided for herein under Article V hereof,
therefore Employee shall not be eligible to participate in the Senior Executive
Change Of Control Severance Plan of the Company. During the Term, such benefits
shall include,
but not be limited to the following:
(i) Standard Group Health and Dental Insurance Policy.
(ii) Term Life Insurance Policy equal to 3 times Employee's Base
Compensation. (iii) Participation in the Company's 401(k) and
Section 125 Benefits Plans. (iv) Five (5) weeks paid vacation each
year during the Term hereof. (v) Parking at the principal
headquarters of the Company. (vi) A monthly (or annual) car
allowance consistent with Company policy for
senior executive level officers of the Company plus insurance, fuel and
maintenance. Given Employee's obligation to relocate to the New York area,
it shall be permissible for Employee to apply such allowance to his
existing vehicle.
(vii) The Company shall reimburse Employee for reasonable expenses
incurred for tax and personal accounting services not to exceed $2,000 per
year.
(viii)The Company shall also make available to Employee, on a
full-time basis, an administrative or executive assistant at the initial
selection of Employee.
(ix) The Company shall provide Employee with relocation coverage to
enable Employee to relocate his principal residence and personal
belongings of his immediate family from Houston, Texas to the principal
headquarters in New York City or the greater Tri-State area. To facilitate
the relocation of Employee to the New York area, the Company shall
reimburse Employee his actual costs incurred in connection with such
relocation up to a maximum of $120,000. Employee shall provide appropriate
receipts and documentation to the Company. An advance reimbursement under
this Paragraph of $50,000 shall be made
to Employee as soon as practicable after execution of this Agreement. The
Company will endeavor to diminish income tax exposure to Employee with
respect to utilization and expenditure of such Relocation Funds. The
Employee shall be entitled to utilize such Relocation Funds toward any
expenditure which may, directly or indirectly, result from the relocation
of Employee and his family to New York from Texas, including (but not
limited to) expenses such as the payment of Employee's existing mortgage
in Houston along with the timely payment of insurance, taxes, assessments,
utilities, yard and pool maintenance beginning with the effective date
hereof and continuing thereafter until either the Employee's residence is
sold. With respect to the sale of Employee's residence in Texas, the
Relocation Funds shall include applicable brokerage fee's, closing and
related costs, and shall also be used to compensate any loss in equity
calculated upon the original purchase price of $542,5000. Additionally,
the Relocation Funds shall include temporary living expenses within the
Tri-State area such as monthly rentals, utilities, insurance, applicable
real property taxes and maintenance. In the event the Relocation Funds are
not exhausted after all direct cost receipts are reimbursed to Employee,
the residue balance of such Relocation Funds shall be provided to Employee
to reflect reimbursement for the increased cost-of-living differential
between Houston, Texas and New York City. Finally, reasonable expenses
such as moving, interim airfare, lodging, meals, transportation and
similar expenses incurred by Employee or his immediate family shall be
covered by such Relocation Funds. With respect to on-going business
expenses (E.G. hotel, meals, transportation and airfare) incurred by
Employee during the period of January 1, 1997 thru January 31, 1997 as a
result of the pendency of
Board and other appropriate employment approvals and, taking into account
the timing for negotiation of definitive relocation provisions, submission
of Employee to the Board of Directors for candidate approval as a senior
executive officer of the Company, and then final execution hereof, the
Company shall continue to be responsible for Employee's business expenses
and all business related travel, lodging, meals and similar expenses
incurred by Employee. Such business expenses incurred during January 1997
shall not be considered part of the Relocation Funds.
ARTICLE IV
TERMINATION
(a) The Company may terminate this Agreement, prior to the expiration of
the Term, for Cause (as defined below). "Cause" for purposes of this Agreement
shall only exist if Employee commits one or more of the acts listed below and,
if curable, fails to cure such breach within a period of thirty (30) days after
receipt of written notice from the Board describing the breach in detail. The
acts constituting Cause shall be limited solely to the following:
(i) willful and continued refusal without proper legal cause to
perform Employee's duties and responsibilities;
(ii) conviction of or a plea of nolo contendere to the charge of a
crime involving moral turpitude, dishonesty, theft, breach of trust, or
unethical business conduct;
(iii) the unauthorized absence of Employee from work (other than for
sick leave, disability or vacation) for a period of 30 working days ro
more during a period of 45 working
days; or
(iv) a material and continued breach of this Agreement by Employee.
In the event Company terminates Employee's employment for Cause, Company shall
pay all of the Employee's compensation and benefits pro-rated through the date
of termination including, but not limited to, Employee's Base Compensation,
Incentive Compensation, Long-Term Performance Incentive Compensation, the
Signing Bonus and all other applicable benefits listed in Article III hereof.
(b) The employment of Employee hereunder may be terminated by Company on
at least thirty (30) days prior written notice if Employee shall become
permanently disabled. Employee shall be deemed to be permanently disabled if
Employee has been substantially unable to discharge his duties and obligations
under this Agreement by reason of illness, accident or physical or mental
disability for a period of 120 calendar days out of any consecutive period of
180 calendar days; provided, however, that nothing herein shall limit Employee's
rights under any medical or disability plans that are provided by Company. If
there should be a dispute between Company and Employee as to Employee's physical
or mental disability for purposes of this Agreement, the question shall be
settled by the opinion of an impartial reputable physician or psychiatrist
agreed upon by the parties or their representatives. The certification of such
physician or psychiatrist as to the questioned dispute shall be final and
binding upon the parties hereto. In the event Employee's employment is
terminated because of Employee's permanent disability under this Section,
Company shall pay Employee's compensation and benefits pro-rated through the
date of termination including, but not limited to, Employee's Base Compensation,
Incentive Compensation, Long-Term Performance
Incentive Compensation, the Signing Bonus and all other benefits listed in
Article III hereof.
(c) The employment of Employee hereunder shall be automatically terminated
on the date of Employee's death. Upon the death of Employee during the Term
hereof, Company shall pay the estate of Employee the benefits described in
Article IX.
(d) At the option of Employee, Employee may terminate his employment
hereunder prior to the expiration of the Term as follows: (i) for any reason by
giving six (6) months written notice to the Board of Directors of his intent to
terminate this Agreement or (ii) immediately upon the occurrence of one of the
following:
(A) the removal of Employee from the position(s) Employee holds on
the effective date of this Agreement, including the position of Senior
Vice President, Strategic Planning & Corporate Development of the Company,
or any subsequent position to which Employee has been willingly promoted
or elected;
(B) a material reduction in Employee's authority or responsibility;
(C) relocation of the Company's headquarters to a location other
than in the
greater New York City area; or
(D) any other breach of this Agreement by the Company.
In the event of a voluntary termination under Section IV(d)(i), Employee shall
be paid his Base Compensation, Incentive Compensation, Long-Term Performance
Incentive Compensation, and the Signing Bonus and other benefits hereunder
computed to the date of termination. Upon voluntary termination under Section
IV(d)(ii)(A-D), Employee shall be paid his Base Compensation, Incentive
Compensation, Deferred Compensation and the Signing Bonus computed to the end of
the Term,
in addition to any other benefits paid pursuant to Article V.
(e) Notwithstanding any termination of Employee's employment hereunder
howsoever brought about, Article VII and VIII shall remain in full force and
effect and shall survive the termination of such employment and this Agreement.
Employee shall continue to perform and render all services contemplated herein
up to the effective date of such termination.
ARTICLE V
TERMINATION FOLLOWING A CHANGE OF CONTROL
(a) Expressly exempting the pending merger of the Company with LILCO
pursuant to that certain Plan of Merger Agreement executed between the Company
and LILCO on or about December 29, 1996 and notwithstanding anything to the
contrary contained herein, or within the "Senior Executive Change Of Control
Severance Plan", as adopted, should Employee at any time within three (3) years
of a Change of Control (as defined below) cease to be an employee of the Company
(or its successor), by reason of (i) termination by the Company (or its
successor) other than for Cause (which for purposes of this paragraph shall be
limited to the following: (A) a conviction of or a plea of nolo contendere to
the charge of a felony involving moral turpitude (which, through lapse of time
or otherwise, is not subject to appeal); or (B) the unauthorized absence of
Employee from work (other than for sick leave, disability or vacation) for a
period of 30 working days or more during a period of 45 working days or (ii)
voluntary termination by Employee for "good reason upon Change of Control" (as
defined below), the Company (or its successor) shall pay to Employee, in cash,
within ten (10) days of such termination the following severance payments and
benefits:
(i) A lump-sum payment equal to 299% of Employee's Base Compensation
at the rate stated in Section III(a) of this Agreement; and
(ii) A lump-sum payment equal to the amount of any accrued but
unpaid Incentive Compensation, Long-Term Performance Incentive
Compensation and Signing Bonus and other benefits under this Agreement to
the date of termination.
The Company (or its successor) shall also provide continuing coverage and
benefits comparable to all life, health and disability plans of the Company for
a period of 36 months from the date of termination.
(b) If the severance payments and other payments owed under this paragraph
to Employee ("Parachute Payments") exceed the largest parachute payment
permitted described in Section 280G of the Internal Revenue Code of 1986, as
amended (the "Code") (i) without a disallowance of any deduction under Section
280G of the Code or (ii) imposition of any excise tax under Section 4999 of the
Code ("Parachute Limit"), the following adjustments to the severance payments
shall be made:
(i) If the Parachute Payments exceed the Parachute Limit by less
than five percent (5%) of the total amount of the Parachute Payments,
Employee shall forfeit his right to receive the portion of Parachute
Payments in excess of the Parachute Limit; and
(ii) If the Parachute Payments exceed the Parachute Limit by five
percent (5%) or more of the total amount of Parachute Payments, the amount
of the Parachute Payments shall include a "gross-up" payment to make
Employee whole for the excise tax liability resulting from such severance
Parachute Payments.
The foregoing calculations of the amounts of any Parachute Payments and the
determination of whether any such payments exceed the Parachute Limit shall be
made in accordance with Section 280G of the Code.
(c) As used in this Section, voluntary termination by Employee for "good
reason upon Change of Control" shall mean (i) the removal of Employee from the
position(s) Employee holds on the effective date of this Agreement, or any
subsequent position to which Employee has been willingly promoted or elected;
(ii) a material reduction in Employee's authority or responsibility; (iii)
relocation of the Company's headquarters to a location other than the greater
New York City area; or (iv) any other breach of this Agreement by the Company.
(d) As used in this Agreement, a "Change of Control" shall be deemed to
have occurred if (i) any "Person" (as such term is used in Section 13(d) and
14(d) of the Securities Exchange Act), directly or indirectly, of securities of
the Company representing more than twenty-five percent (25%) of the combined
voting power of the Company's ten outstanding securities or (ii) the
stockholders of the Company approve a merger or consolidation that would result
in the voting securities of the Company outstanding immediately prior thereto
continuing to represent (either by remaining outstanding or by being converted
into voting securities of the surviving entity) at least sixty-six and
two-thirds percent (66 2/3%) of the total voting power represented by the voting
securities of the Company or such surviving entity outstanding immediately after
such merger or consolidation, or the stockholders of the Company approve a plan
of complete liquidation of the Company or an agreement for sale or disposition
by the Company of all or substantially all of the Company assets; provided
again, however, as hereinabove described, the pending merger of the Company with
LILCO is hereby explicitly excluded from this definition of "Change of Control".
(e) The Company shall pay any attorney's fees incurred by Employee in
reasonably seeking to enforce the terms of this Article V.
ARTICLE VI
DUTIES OF EMPLOYEE
(a) Employee's duties shall be those which are customarily attendant to
his position described above. Employee recognizes and agrees that he owes the
Company a fiduciary duty of loyalty, fidelity and allegiance to act at all times
in the best interests of the Company and to do no act which would injure the
business of the Company, its interests or reputation. Employee's duty of loyalty
shall extend throughout the term of his employment hereunder and shall apply
after termination of such employment to the extent set forth in this Agreement
and as recognized by law.
(b) In keeping with Employee's fiduciary duty to the Company, Employee
agrees that during his employment hereunder, he shall not knowingly become
involved in a conflict between his personal interests and those of the Company,
and upon discovery thereof, shall not allow such conflict of interest to
continue.
ARTICLE VII
NONCOMPETITION
The Employee agrees that all payments, compensation, and benefits payable
to the Employee under this Agreement shall be subject to the Employee's
compliance with the provisions of this
Article VII.
(A) Except as provided for under Article II of this Agreement, while employed
hereunder and for the greater of (i) a period of one year following the
termination of this Agreement by reason of the expiration of its Term as defined
in Article I hereof or (ii) the remainder of the Term, if this Agreement is
terminated before such expiration as defined in Article I hereof, whichever is
longer, (the "Restricted Period"), neither Employee or corporation, partnership
or other entity controlled by or under common control with Employee will (a) in
the States of New York, New Jersey and Connecticut travel, canvas or advertise
for, or otherwise assist, render services to, become employed by, be a
consultant to, or invest in any business entity or with any individual engaged
in, or engage directly or indirectly in, any line or liens of business carried
on or contemplated which, directly or indirectly, is a competitor of the
Company, (b) solicit business or otherwise deal directly or indirectly with any
customers or persons who were employees of customers or vendors of the Company
at any time, (c) directly or indirectly divert or attempt to divert from the
Company, any business in which it has been engaged during the Term of Employee's
employment with the Company, or in which it might reasonably be expected to
become engaged, (d) directly or indirectly interfere or attempt to interfere
with the relation ships between the Company, its customers, employees of
customers or vendors, (e) directly or indirectly interfere or attempt to
interfere with the relationship of employer-employee or principal and agent of
any person bearing such relationship to the Company, nor directly or indirectly
divert or attempt to divert any such person from employment or representation of
the Company; provided, however, that Employee shall not be prohibited by the
terms of this Paragraph from investing in and owning not more than one percent
(1%) of the outstanding shares of common stock of any corporation engaged in
similar business to the Company, the shares of which are publicly traded
pursuant to the Securities Exchange Act of 1934, and/or passively invest as a
limited partner in any non-publicly traded security similar to the business of
the Company. (B) Employee has carefully read and considered the provisions of
this Article VII and, having done so, agrees that the restrictions set forth in
this Article are fair and reasonable, and are reasonably required for the
protection of the Company, its officers, directors, employees, creditors and
shareholders. Employee understands that the restrictions contained in this
Article may limit his ability to engage in a business similar to the Company
business, but acknowledges that he will receive sufficiently high renumeration
and other benefits from the Company hereunder to justify such restrictions. (c)
In the event that any provision of this Article VII relating to the Restricted
Period and/or the areas of restriction shall be declared by a court of competent
jurisdiction to exceed the maximum time period or areas such court deems
reasonable and enforceable by the court shall become and thereafter be the
maximum time period and/or areas.
ARTICLE VIII
CONFIDENTIALITY
The Employee agrees that all payments, compensation, and benefits payable
to the Employee under this Agreement shall be subject to the Employee's
compliance with the provisions of this Article VIII.
(A) Employee recognizes that the services to be performed by him hereunder are
special, unique, and extraordinary and that, by reason of his employment with
the Company, he may acquire Confidential Information concerning the operation of
the Company, the use or disclosure of which would cause the Company substantial
loss and damages which could not be readily calculated and for which no remedy
at law would be adequate. Accordingly, Employee agrees that he will not
(directly or indirectly) at any time, whether during or after his employment
hereunder, (i) knowingly use for an important personal benefit any Confidential
Information that he may learn or has learned by reason of his employment with
the Company or (ii) disclose any such Confidential Information to any person
except (a) in the performance of his obligations to the Company hereunder, (b)
as required by applicable law, (c) in connection with the enforcement of his
rights under this Agreement, (d) in connection with any disagreement, dispute or
litigation (pending or threatened) between Employee and the Company or (e) with
the prior written consent of the Board of the Company. As used herein
"CONFIDENTIAL INFORMATION" includes information with respect to the Company's
products, facilities and methods, research and development, trade secrets and
other intellectual property, systems, patents and patent applications,
procedures, manuals, confidential reports, product price lists, customer lists,
financial information, business plans, prospects or opportunities; PROVIDED,
HOWEVER, that such term shall not include any information that (x) is or becomes
generally known or available other than as a result of a disclosure by Employee
or (y) is or becomes known or available to Employee on a nonconfidential basis
from a source (other than the Company), which, to Employee's knowledge, is not
prohibited from disclosing such information to Employee by a legal, contractual,
fiduciary or other obligation to the Company.
(B) Employee confirms that all Confidential Information is the exclusive
property of the company. All business records, papers and documents kept or made
by Employee while employed by the Company relating to the business of the
Company shall be and remain the property of the Company at all times. Upon the
request of the Company at any time, Employee shall promptly deliver to the
Company and shall retain no copies of any written materials, records and
documents made by Employee or coming into his possession while employed by the
Company concerning the business or affairs of the Company other than personal
materials, records and documents (including notes and correspondence) of
Employee not containing proprietary information relating to such business or
affairs.
INJUNCTIVE RELIEF
Employee acknowledges that a breach of any of the covenants contained in
this Article VIII may result in material irreparable injury to the Company for
which there is no adequate remedy at law, that it will not be possible to
measure the damages for such injuries precisely and that, in the event of such
breach, any payments remaining under the terms of this Agreement shall cease and
the Company shall be entitled to obtain a temporary restraining order and/or
preliminary or permanent injunction restraining Employee from engaging in
activities prohibited by this Article VII or such other relief as may be
required to specifically enforce any of the covenants contained in this Article
VIII. Employee agrees to and hereby does submit to IN PERSONA injunction in the
appropriate courts of the State of New York. Employee agrees that the rights of
the Company to obtain an injunction granted by this Paragraph of the Agreement
shall not be considered a waiver of its rights to assert
any other remedies it may have at law or in equity.
ARTICLE IX
DEATH OF EMPLOYEE
In the event of the death of Employee during Employee's term of employment
hereunder, the Company shall pay to Employee's estate (i) the Base Compensation
which would otherwise by payable to Employee under this Agreement up to the end
of the month in which such death occurs; (ii) the Signing Bonus and the
Incentive Compensation, if any, which may become payable to Employee for the
period prior to the date of death; and (iii) all other benefits which have
accrued to date of Employee's death, including any Deferred Compensation under
the Company's deferred Compensation Plan.
ARTICLE X
MANDATORY ARBITRATION
(a) Any dispute, controversy, or claim arising out of or relating to any
provision of this Agreement or the interpretation, enforceability, performance,
breach, termination, or validity hereof, including, but not limited to, this
arbitration clause shall be solely and finally settled by confidential
arbitration in the State of New York, in accordance with the Rules of the
American Arbitration Association ("AAA") as modified by the provision of this
Article X.
(b) To the extent this Article X is deemed a separate agreement,
independent from this Agreement, Article XIV hereof is incorporated herein by
reference.
(c) The arbitration shall be conducted by a panel of three (3)
arbitrators, selected in the following manner: each party shall select one (1)
arbitrator within twenty (20) days from the date of receipt of the demand to
commence arbitration. If one or both of the parties fails to nominate an
arbitrator, the AAA shall have the power to select an arbitrator on the party's
behalf. Within ten (10) days after the appointment of the last of the two (2)
arbitrators, the selected party arbitrators shall choose a third arbitrator to
serve as the neutral chairman of the panel.
(d) The parties agree that the provisions of this Article X, including the
rules of the AAA and the laws of the State of New York and the United States of
America, as modified by the terms of this Article X, shall govern the
arbitration of any disputes arising pursuant to this Agreement. In the event of
any conflict between the laws of the State of New York and the Federal
Arbitration Act (9 U.S.C.ss. et seq. (1988)) with respect to any arbitration
conducted pursuant to this Agreement, to the extent permissible, it is the
express intent of the parties that the law of the Federal Arbitration Act, as
modified by this Article X, shall prevail.
(e) All papers, documents, or evidence, whether written or oral, filed
with or presented to the arbitrator shall be deemed by the parties and the
arbitrator to be confidential information. No party, expert, or arbitrator shall
disclose in whole or in part to any other person any confidential information
submitted by any other person in connection with arbitration proceedings, except
to the extent (i) required by law or regulation, (ii) reasonably necessary to
assist counsel in the arbitration or preparation for arbitration of the dispute,
or (iii) that such confidential information was previously, or subsequently
becomes, known to the disclosing party, or becomes publicly known through no
fault of the disclosing party. Confidential information may be disclosed to
attorneys,
parties, and qualified outside experts requested by any party's counsel to
furnish technical or expert services or to give testimony at the arbitration
proceedings; provided, however, that such persons agree to maintain the
confidentiality of such disclosures to them.
All oral and written communications between the parties issued or
prepared in connection with attempted resolution of any disputes hereunder shall
be deemed to have been prepared and communicated in furtherance, and in the
context, of dispute settlement, and shall be exempt from discovery and
production, and shall not be admissible as evidence (whether as an admission or
otherwise), in any proceedings for the resolution of the dispute.
(f) The parties shall be entitled to discover all documents and other
information reasonably necessary for a full understanding of any legitimate
issue raised in the arbitration. They may use all methods of discovery customary
under New York law, including, but not limited to, depositions, interrogatories
and requests for admission. The time periods for compliance shall be set by the
arbitrator, who may also set limits on the scope of such discovery.
The arbitrator is empowered to issue, on ex parte application of any
party or on his own volition, any subpoena (including any subpoena duces tecum)
in accordance with any provision of applicable law, and to make such orders as
may be necessary for the arbitrator or persons designated by the arbitrator to
obtain appropriate or necessary evidence.
The New York Rules of Evidence shall apply to the proceedings.
(g) The arbitrator is empowered to render the following awards in
accordance with any provision of this Agreement: (i) enjoining a party from
performing any act prohibited, or compelling a party to perform any act
required, by the terms of this Agreement and any order entered pursuant
to this Agreement or deemed necessary by the arbitrator to resolve disputes
arising under or relating to this Agreement or order; (ii) where, and only
where, violations of this Agreement have been found, shortening or lengthening
any period established by this Agreement or order; and (iii) ordering such other
legal or equitable relief, including any provisional legal or equitable relief,
or specifying such procedures as the arbitrator deems appropriate, to resolve
any dispute submitted to it for arbitration.
(h) An award rendered in connection with an arbitration pursuant to this
Article X shall be final and binding upon the parties, and any judgment upon
such an award may be entered and enforced in any court of competent
jurisdiction.
(i) Notwithstanding any other provision hereof which may appear to be the
contrary, the parties specifically covenant and agree that no party hereto shall
be entitled to assert any demand for or recover any consequential or punitive
damages, but that the collection of actual damages shall be full compensation
and satisfaction for any breach hereof.
The parties agree that the award of the arbitral tribunal will be
the sole and exclusive remedy between them regarding any and all claims and
counterclaims between them with respect to the subject matter of the arbitrated
dispute. The parties hereby waive all jurisdictional defenses in connection with
any arbitration hereunder or the enforcement of any order or award rendered
pursuant thereto (assuming that the terms and conditions of this arbitration
clause have been complied with).
The parties hereby agree that the relationship between the parties
is commercial in nature, and that any disputes between the parties related to
this Agreement shall be deemed
commercial.
(j) The arbitrator shall apportion to each party all costs (other than
attorneys' fees which shall be the separate cost of each party) incurred in
conducting the arbitration in accordance with what he deems most and equitable
under the circumstance. Any party wishing to make a stenographic record of the
proceedings may do so at its own expense.
ARTICLE XI
SERVABILITY
In the event any provisions of this Agreement are held to be invalid or
nonenforceable, such invalid or nonenforceable provisions shall be separable
from the remainder of the Agreement, and the remainder of this Agreement shall
be unaffected by the invalid or nonenforceable provision.
ARTICLE XII
ENTIRE AGREEMENT
This Agreement constitutes the entire agreement and understanding between
the Company and Employee, whether express or implied, with respect to Employees'
employment by the Company and supersedes any and all prior agreements and
understandings, whether written, oral or otherwise, relating to the subject
matter of this Agreement; provided, however, that the provisions of the Conflict
of Interests and Confidentiality Policies of the Company shall not be superseded
by but shall supplement the terms of this Agreement.
ARTICLE XIII
APPLICABLE LAW
This Agreement shall be subject to and governed by the laws of the State of New
York. IN WITNESS WHEREOF, the execution hereof shall be effective as of the date
hereinabove indicated.
THE BROOKLYN UNION GAS COMPANY
By: /s/ Robert B. Catell
------------------------
Name: Robert B. Catell
Title: Chairman of the Board
EMPLOYEE
By:/s/ David L. Phillips
------------------------
Name: David L. Phillips
STATE OF NEW YORK ss.
ss.
COUNTY OF KINGS ss.
BEFORE ME, the undersigned authority, on this day personally appeared
Robert B. Catell, the Chairman of the Board of The Brooklyn Union Gas Company,
known to me to be the person whose name is subscribed to the foregoing
instrument, and acknowledged to me that he had executed the same for the
purposes and consideration therein expressed.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, the ___ day of January, 1997.
/s/-------------------------------
Notary Public in and for the State of New York
STATE OF NEW YORK ss.
ss.
COUNTY OF KINGS ss.
BEFORE ME, the undersigned authority, on this day personally appeared
David L. Phillips, individually, known to me to be the person whose name is
subscribed to the foregoing instrument, and acknowledged to me that he had
executed the same for the purposes and consideration therein expressed.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, the 23 day of January, 1997.
/s/--------------------------------
Notary Public in and for the State of New York