EXHIBIT 10.1
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AMENDMENT TO
EMPLOYMENT AGREEMENT
This Amendment to Employment Agreement is made as of October 22, 2007, by
and between Birmingham Utilities, Inc., a Connecticut corporation (the
"Company"), and John Tomac ("Executive").
WHEREAS, the Company and Executive entered into an Employment Agreement
(the "Agreement") as of October 1, 1998; and
WHEREAS, the Company and Executive desire to amend the Agreement to conform
with the requirements of Code Section 409A as set forth in this Amendment; and
WHEREAS, BIW Limited, the parent corporation of the Company, has entered
into a series of agreements dated as of June 29, 2007, with various unrelated
buyers resulting from bona fide arms-length negations, to sell the Company and
its affiliates (the "Sale of the Company and its Affiliates").
NOW, THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt and sufficiency of which are hereby mutually
acknowledged, the Agreement is hereby amended as follows:
(1) Effective as of January 1, 2005, Section 4(c) of the Agreement is
hereby deleted in its entirety, and the following substituted
therefor:
(c) Termination upon Breach by Company. This Agreement may be
terminated by Executive at his option in the event of a breach hereof
by the Company. In the event of such termination, and provided that
Executive has a Separation from Service as defined in Treas. Reg.
ss.1.409A-1(h), Executive shall continue to receive his Base Salary
(as defined in 3(a), above), for the balance of the Employment Period.
Payment of such amount shall be made monthly in accordance with usual
payroll practices of the Company, provided that no payment shall be
made prior to the first day of the seventh (7th) month following such
Separation from Service, at which time such amounts that would
otherwise have been paid during such six month delay shall be paid in
a single lump sum.
(2) Effective as of January 1, 2005, Section 4(e) of the Agreement is
hereby amended by adding the following at the end thereof:
Notwithstanding the foregoing, (i) no severance payment shall be made
under this Section 4(e) unless the termination of employment
constitutes a Separation from Service as defined in Treas. Reg.
ss.1.409A-1(h); and (ii) the severance payment shall be made in a
single lump sum as of the first day of the seventh (7th) month
following the Separation from Service.
(3) Effective as of January 1, 2005, Section 4(f) of the Agreement is
hereby amended by striking the last sentence and adding the following
at the end thereof:
"Disability" shall mean Disability as defined in Code ss.409A and the
regulations thereunder.
(4) Effective as of January 1, 2005, Section 4(g) of the Agreement is
hereby deleted in its entirety and the following substituted therefor:
(g) Payment Upon Termination In Connection with a Change of Control.
(i) Notwithstanding any other provision hereof, should a Change
of Control of the Company (as such term is defined below) occur
during his term of employment, Executive may, upon such Change of
Control, elect to terminate this Agreement and Separate from
Service (as defined in Treas. Reg. ss.1.409A-1(h)). Upon such
Separation from Service, Executive shall be vested in, and
entitled to receive, a lump sum cash payment (the "Change of
Control Payment") equal to two (2) times the greater of the
following: (A) Executive's compensation (the "Compensation") from
the Company for services rendered for the last full fiscal year
immediately preceding the Change of Control; or (B) Executive's
average annual Compensation with respect to the two (2) most
recent fiscal years ending before such Change of Control.
Compensation as described above shall include all Base Salary,
bonus and other cash incentive payments to Executive for services
rendered for the time period in question.
(ii) Payment of the Change of Control Payment shall be made in a
single lump sum as of the first day of the seventh (7th) month
following the Separation from Service, and shall not be reduced
by any compensation which Executive may receive from employment
with another employer.
(iii) For purposes of this Agreement, a "Change of Control" shall
mean any of the following events, provided, however, that vesting
and payment of the benefit described in Section 4(g)(i) shall
only be made if the occurrence of such event also constitutes a
"Change in Ownership" or "Change of Effective Control" of the
Company as those terms are defined in Treasury Regulation
ss.1.409A-3(i)(5): (A) the date of a merger, acquisition,
consolidation, sale of assets or other reorganization to which
the Company is a party, as a consequence of which members of the
Company's Board of Directors in office immediately prior to such
transaction constitute less than a majority of the appropriate
Board of Directors immediately thereafter; (B) the date that any
one person, or more than one person acting as a group (as defined
in Treasury Regulation ss.1.409A-3(i)(5)(v)(B)), acquires
ownership of stock of the Company that, together with stock held
by such person or group, constitutes more than fifty percent
(50%) of the total fair market value or total voting power of the
stock of the Company; or (C) the date any one person, or more
than one person acting as a group (as defined in Treasury
Regulation ss.1.409A-3(i)(5)(v)(B)), acquires (or has acquired
during the 12-month period ending on the date of the most recent
acquisition by such person or persons) ownership of stock of the
Company possessing thirty percent (30%) or more of the total
voting power of the stock of the Company (collectively, a "409A
Change of Control").
(5) All other terms and conditions of the Agreement remain in full force
and effect.
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IN WITNESS WHEREOF, this Amendment shall be effective as of the date first
written above.
BIRMINGHAM UTILITIES, INC.
By: /s/ Betsy Henley-Cohn
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Name: Betsy Henley-Cohn
Its: Chairwoman
EXECUTIVE
/s/ John Tomac
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Name: John Tomac
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