-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, S2lohMd6gw2rUF8yBqUyfD5ccVDUpDOrFLJ4Rz496EaUK1H7CHC1szM7uOPAjpu4 S/nsZbNXPWI6i4ir2qNQ4w== 0000311259-99-000037.txt : 19991101 0000311259-99-000037.hdr.sgml : 19991101 ACCESSION NUMBER: 0000311259-99-000037 CONFORMED SUBMISSION TYPE: 10-Q PUBLIC DOCUMENT COUNT: 10 CONFORMED PERIOD OF REPORT: 19990930 FILED AS OF DATE: 19991029 FILER: COMPANY DATA: COMPANY CONFORMED NAME: EASTERN ENTERPRISES CENTRAL INDEX KEY: 0000311259 STANDARD INDUSTRIAL CLASSIFICATION: NATURAL GAS DISTRIBUTION [4924] IRS NUMBER: 041270730 STATE OF INCORPORATION: MA FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 10-Q SEC ACT: SEC FILE NUMBER: 001-02297 FILM NUMBER: 99736797 BUSINESS ADDRESS: STREET 1: 9 RIVERSIDE RD CITY: WESTON STATE: MA ZIP: 02493 BUSINESS PHONE: 7816472300 FORMER COMPANY: FORMER CONFORMED NAME: EASTERN GAS & FUEL ASSOCIATES DATE OF NAME CHANGE: 19890511 10-Q 1 EASTERN ENTERPRISES FORM 10Q Form 10-Q SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 [ X ] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 For the quarterly period ended September 30, 1999 OR [ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 For the transition period from to Commission File Number 1-2297 EASTERN ENTERPRISES (Exact name of registrant as specified in its charter) _________MASSACHUSETTS 04-1270730 (State or other jurisdiction of (I.R.S. Employer incorporation or organization) Identification No.) _______9 RIVERSIDE ROAD, WESTON, MASSACHUSETTS 02493 (Address of principal executive offices) (Zip Code) _________________781-647-2300 (Registrant's telephone number, including area code) ___________________________________________________ Former name, former address and former fiscal year, if changed since last report. Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes X No The number of shares of Common Stock outstanding of Eastern Enterprises as of October 27, 1999 was 27,020,034. Form 10-Q Page 2 PART I. FINANCIAL INFORMATION Item 1. FINANCIAL STATEMENTS Company or group of companies for which report is filed: EASTERN ENTERPRISES AND SUBSIDIARIES ("Eastern") Consolidated Statements of Operations - ------------------------------------- Three months ended Nine months ended September 30, September 30, (In thousands, except per share amounts) 1999 1998 1999 1998 - ------------------------------------------------------------------------------- Revenues $144,978 $135,881 $660,327 $677,228 Operating costs and expenses: Operating costs 108,058 97,598 461,066 465,338 Selling, general & administrative expenses 25,609 28,856 84,658 92,194 Depreciation & amortization 16,141 13,953 59,790 56,794 -------- -------- -------- -------- 149,808 140,407 605,514 614,326 -------- -------- -------- -------- Operating earnings (4,830) (4,526) 54,813 62,902 Other income (expense): Interest income 2,618 1,438 7,488 5,548 Interest expense (9,648) (7,465) (27,062) (24,495) Other, net 8,012 3,155 9,115 5,384 -------- -------- -------- -------- Earnings (loss) before income taxes (3,848) (7,398) 44,354 49,339 Provision (credit) for income taxes (1,025) (3,644) 17,449 18,144 -------- -------- -------- -------- Earnings (loss) before extraordinary items and accounting change (2,823) (3,754) 26,905 31,195 Extraordinary items, net of tax: Reversal of Coal Act reserve 0 0 0 48,425 Loss on early extinguishment of debt 0 0 0 (1,465) Cumulative effect of accounting change, net of tax 0 0 0 8,193 -------- -------- -------- -------- Net earnings (loss) $ (2,823) $ (3,754) $26,905 $ 86,348 -------- -------- -------- -------- -------- -------- -------- -------- Basic earnings (loss) per share before extraordinary items and accounting change $ (.12) $ (.17) $ 1.16 $ 1.38 Extraordinary items, net of tax: Reversal of Coal Act reserve 0 0 0 2.16 Loss on early extinguishment of debt 0 0 0 (.07) Cumulative effect of accounting change, net of tax 0 0 0 .37 -------- -------- -------- -------- Basic earnings per share $ (.12) $ (.17) $ 1.16 $ 3.84 -------- -------- -------- -------- -------- -------- -------- -------- Diluted earnings per share before extraordinary items and accounting change $ (.12) $ (.17) $ 1.16 $ 1.37 Extraordinary items, net of tax: Reversal of Coal Act reserve 0 0 0 2.13 Loss on early extinguishment of debt 0 0 0 (.06) Cumulative effect of accounting change, net of tax 0 0 0 .36 Diluted earnings per share $ (.12) $ (.17) $ 1.16 $ 3.80 -------- -------- -------- -------- -------- -------- -------- -------- Dividends per share $ .42 $ .41 $ 1.26 $ 1.23 -------- -------- -------- -------- -------- -------- -------- -------- The accompanying notes are an integral part of these financial statements. Form 10-Q Page 3 Eastern Enterprises and Subsidiaries - ------------------------------------ Consolidated Balance Sheets - --------------------------- September 30, December 31, September 30, (In thousands) 1999 1998 1998 - ------------------------------------------------------------ ----------------- ASSETS Current assets: Cash and short-term investments $30,718 $159,836 $167,501 Receivables, less reserves 87,920 104,869 66,075 Inventories 76,340 55,866 56,176 Deferred gas costs 21,589 54,065 48,853 Other current assets 7,319 5,689 9,247 ---------- --------- --------- Total current assets 223,886 380,325 347,852 Property and equipment, at cost 2,179,169 1,722,718 1,699,539 Less--accumulated depreciation 910,068 746,969 735,068 ---------- --------- --------- Net property and equipment 1,269,101 975,749 964,471 Other assets: Excess of cost over fair value of acquired net assets, less amortization 248,351 0 0 Deferred postretirement health care costs 74,551 78,567 82,965 Investments 15,437 15,395 13,894 Deferred charges and other costs, less amortization 77,169 68,334 69,205 ---------- --------- --------- Total other assets 415,508 162,296 166,064 ---------- --------- --------- Total assets $1,908,495 $1,518,370 $1,478,387 ---------- ---------- ---------- ---------- ---------- ---------- The accompanying notes are an integral part of these financial statements. Form 10-Q Page 4 Eastern Enterprises and Subsidiaries - ------------------------------------ Consolidated Balance Sheets - --------------------------- September 30, December 31, September 30, (In thousands) 1999 1998 1998 - ------------------------------------------------------------------------------ LIABILITIES AND SHAREHOLDERS' EQUITY Current liabilities: Current debt $61,984 $43,237 $ 18,488 Accounts payable 57,456 56,567 47,490 Accrued expenses 40,322 38,540 45,097 Other current liabilities 48,678 40,011 40,739 -------- -------- -------- Total current liabilities 208,440 178,355 151,814 Gas inventory financing 43,285 52,644 43,249 Long-term debt 516,683 385,519 387,311 Reserves and other liabilities: Deferred income taxes 174,069 134,911 135,899 Postretirement health care 98,946 97,197 96,710 Preferred stock of subsidiary 26,447 29,360 29,351 Other reserves 104,866 94,315 91,671 -------- -------- -------- Total reserves and other liabilities 404,328 355,783 353,631 Commitments and Contingencies Shareholders' equity: Common stock, $1.00 par value Authorized shares--50,000,000; Issued shares--27,021,196 at September 30, 1999; 22,535,734 at December 31, 1998, and 22,507,975 at September 30, 1998 27,021 22,536 22,508 Capital in excess of par value 240,532 53,421 52,666 Retained earnings 468,970 470,576 469,254 Accumulated other comprehensive loss (417) (105) (1,687) Treasury stock at cost - 9,292 shares at September 30, 1999; 10,461 shares at December 31, and September 30, 1998 (347) (359) (359) -------- -------- -------- Total shareholders' equity 735,759 546,069 542,382 -------- -------- -------- Total liabilities and shareholders' equity $1,908,495 $1,518,370 $1,478,387 The accompanying notes are an integral part of these financial statements. Form 10-Q Page 5 Eastern Enterprises and Subsidiaries - ------------------------------------ Consolidated Statement of Cash flows ------------------------------------ Nine months ended September 30, (In thousands) 1999 1998 - ------------------------------------------------------------------------------ Cash flows from operating activities: Net earnings $ 26,905 $ 86,348 Adjustments to reconcile net earnings to net cash provided by operating activities: Extraordinary credit for reversal of Coal Act reserve 0 (48,425) Extraordinary loss on early extinguishment of debt 0 1,465 Cumulative effect of accounting change 0 (8,193) Depreciation and amortization 59,790 56,794 Income taxes and tax credits (7,175) (5,031) Net gain on sale of assets (2,281) (4,522) Other changes in assets and liabilities: Receivables 29,875 59,055 Inventories (5,477) 5,372 Deferred gas costs 32,391 20,832 Accounts payable (9,644) (25,255) Other 496 (9,319) -------- -------- Net cash provided by operating activities 124,880 129,121 -------- -------- Cash flows from investing activities: Capital expenditures (46,971) (84,646) Acquisition of Colonial Gas, net of cash acquired (150,446) 0 Proceeds on sale of assets 6,697 13,504 Investments (7,784) (3,928) Other (2,632) (1,761) -------- -------- Net cash used by investing activities (201,136) (76,831) -------- -------- Cash flows from financing activities: Dividends paid (28,458) (27,269) Changes in notes payable (12,835) (32,933) Proceeds from issuance of long-term debt 0 68,019 Repayment of long-term debt (3,442) (54,116) Redemption of preferred stock (3,000) 0 Changes in gas inventory financing (9,359) (16,574) Other 2,894 7,427 -------- -------- Net cash used by financing activities (54,200) (55,446) -------- -------- Net decrease in cash and cash equivalents (130,456) (3,156) Cash and cash equivalents at beginning of year 159,836 170,657 -------- -------- Cash and cash equivalents at the end of the period 29,380 167,501 Short-term investments 1,338 0 -------- -------- Cash and short-term investments $30,718 $167,501 -------- -------- -------- -------- The accompanying notes are an integral part of these financial statements. Form 10-Q Page 6 EASTERN ENTERPRISES AND SUBSIDIARIES NOTES TO FINANCIAL STATEMENTS September 30, 1999 1. Accounting Policies It is Eastern's opinion that the financial information contained in this report reflects all adjustments necessary to present a fair statement of results for the periods reported. All of these adjustments are of a normal recurring nature. Results for the periods are not necessarily indicative of results to be expected for the year, due to the seasonal nature of Eastern's operations. All accounting policies have been applied in a manner consistent with prior periods. Such financial information is subject to year-end adjustments and annual audit by independent public accountants. The preparation of financial statements in conformity with generally accepted accounting principles requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities, the disclosure of contingent assets and liabilities at the date of the financial statements and the reported amounts of revenues and expenses during the reporting period. Actual results could differ from those estimates. Certain information and footnote disclosures normally included in financial statements prepared in accordance with generally accepted accounting principles have been condensed or omitted in this Form 10-Q. Therefore these interim financial statements should be read in conjunction with Eastern's 1998 Annual Report filed on Form 10-K with the Securities and Exchange Commission. Earnings Per Share Basic earnings per share is based on the weighted average number of shares outstanding. Diluted earnings per share gives effect to the exercise of stock options using the treasury stock method, as reflected below: Three months ended Nine months ended September 30, September 30, (In thousands) 1999 1998 1999 1998 - ------------------------------------------------------------------------------- Weighted average shares 24,108 22,486 23,120 22,461 Dilutive effect of options 142 213 119 232 Adjusted weighted average shares 24,250 2,699 23,239 22,693 ------- ------ ------ ------ ------- ------ ------ ------ Comprehensive Income The following is a summary of the reclassification adjustments and the income tax effects for the components of other comprehensive income (loss) for the nine months ended September 30: Form 10-Q Page 7 Unrealized Holding Reclassification Gains (Losses) on Adjustments for Other (In thousands) Investments Arising (Gains) Losses Comprehensive During the Period Included in Net Income Income (Loss) - ----------------------------------------------- ------------------------------- 1998 Pretax loss $(1,608) $(1,946) $(3,554) Income tax credit 0 0 0 -------- -------- -------- Net change $(1,608) $(1,946) $(3,554) -------- -------- -------- -------- -------- -------- 1999 Pretax loss $ (75) $ (405) $ (480) Income tax credit (26) (142) (168) -------- -------- -------- Net change $ (49) $ (263) $ (312) -------- -------- -------- -------- -------- -------- In 1998, a capital loss carryforward eliminated the need for an income tax provision associated with capital gains. 2. Planned Merger with EnergyNorth, Inc. On July 14, 1999, Eastern signed a definitive agreement that provides for the merger of EnergyNorth, Inc. ("EnergyNorth") into a wholly-owned subsidiary of Eastern at a value of $47.00 per share of EnergyNorth. Under the agreement, 50.1% of the common stock of EnergyNorth will be converted into Eastern stock and the balance will be converted into cash. The exchange ratio for the stock portion of the consideration will be based upon Eastern's weighted average trading stock price for a ten-day period prior to closing, subject to a collar mechanism. The transaction is expected to close in mid-2000, subject to receipt of satisfactory regulatory approvals and the approval of EnergyNorth shareholders. The merger is expected to be tax-free to Eastern and, as with the Colonial transaction, will be accounted for using the purchase method of accounting. 3. Mergers Colonial Gas Merger On August 31, 1999, Eastern completed a merger with Colonial Gas in a transaction with an enterprise value of approximately $474 million. In effecting the transaction, Eastern paid $150 million in cash, net of cash acquired and including transaction costs, issued approximately 4.2 million shares of common stock valued at $186 million and assumed $138 million of debt. The cash portion of the transaction was financed through available cash and borrowings under Eastern's line of credit. The Colonial merger has been accounted for using the purchase method of accounting for business combinations. Accordingly, the accompanying Consolidated Statements of Operations include Colonial Gas' results commencing August 31, 1999. The purchase price was allocated to the net assets acquired based on their fair value. The historical cost basis of Colonial Gas' assets and liabilities, with the exception of its retiree benefit obligations and the adjustments described below, was determined to represent the fair value due to the existence of a regulatory-approved rate plan based upon the recovery of historical costs and a fair return thereon. As a result of the merger and related rate plan, value was not allocated to systems that will no longer be used due to the integration of Colonial into Eastern's natural gas Form 10-Q Page 8 distribution business and value was not allocated to Colonial's net regulatory assets. No value was allocated to the net regulatory assets because the rate plan does not meet the criteria for the continued application of SFAS 71, Accounting for the Effects of Certain Types of Regulation. The allocation of the purchase price remains subject to adjustment upon final valuation of certain acquired balances. The excess of cost over the fair value of the net assets acquired, or goodwill, of $248 million has been recorded as an asset and is being amortized on a straight-line basis, principally over a period of 40 years. The following table sets forth the Company's unaudited pro forma results as if the transaction had occurred on January 1, 1998. Nine months ended (In thousands) September 30 1999 1998 Revenues $790,602 $797,780 Operating earnings 71,367 76,229 Earnings before extraordinary items and accounting change 27,614 30,419 Earnings per common share before extraordinary items and accounting change: Basic $1.03 $1.14 Diluted $1.02 $1.13 Weighted average number of common shares outstanding: Basic 26,876 26,680 Diluted 26,994 26,912 These unaudited pro forma results have been prepared for comparative purposes only and include certain adjustments which primarily reflect goodwill amortization, reduced interest income and an adjusted income tax provision using Eastern's incremental rate of 35%. Form 10-Q Page 9 Essex Gas Merger On September 30, 1998, Eastern completed a merger with Essex Gas which was accounted for as a pooling of interests and the accompanying consolidated financial statements include the accounts of Essex Gas for all periods. Prior to the merger, Essex Gas' fiscal year ended on August 31. Accordingly, the accompanying consolidated statement of operations for the current period reflects a calendar alignment of periods for Eastern and Essex Gas, while the prior period comparative statement of operations reflects the three and nine month periods ended September 30, 1998 of Eastern combined with the three and nine month periods ended August 31, 1998 of Essex Gas. Three and Nine months ended September 30, (In thousands) 1998 1998 - ---------------------------------------------------------------------------- Revenues: Eastern $131,277 $635,442 Essex Gas 4,604 41,786 --------- --------- Combined $135,881 $677,228 --------- --------- --------- --------- Earnings (loss) before extraordinary items and accounting change: Eastern $ (2,812) $ 28,717 Essex Gas (942) 2,478 --------- --------- Combined $ (3,754) $ 31,195 --------- --------- --------- --------- In conforming Essex Gas' historical periods based on a fiscal year ending August 31 with Eastern's operations and changing Essex Gas' fiscal year-end, the consolidated statement of cash flows for the nine months ended September 30, 1998 includes the effect of Essex Gas' excluded period, September 1, 1997 through November 30, 1997, of ($585,000) for net operating activity, ($1,908,000) for net investing activity and $2,428,000 for net financing activity. These amounts are reflected in the respective other captions in the consolidated statement of cash flows. 4. Business Segments Eastern's reportable business segment information for revenues and operating earnings is presented below: Revenues: Three months ended Sept. 30, Nine months ended Sept. 30, (In thousands) 1999 1998 1999 1998 - ------------------------------------------------------------------------------ Natural Gas Distribution $ 70,790 $67,381 $452,441 $479,529 Marine Transportation 69,690 66,850 196,799 194,671 Other Services 4,498 1,650 11,087 3,028 -------- -------- -------- -------- $144,978 $135,881 $660,327 $677,228 -------- -------- -------- -------- -------- -------- -------- -------- Form 10-Q Page 10 Operating Earnings: Three months ended Nine months ended (In thousands) Sept. 30 Sept. 30 1999 1998 1999 1998 - ------------------------------------------------------------------------------ Natural Gas Distribution $(9,436) $(7,646) $45,942 $53,328 Marine Transportation 6,706 8,421 15,605 22,228 Other Services (1,184) (2,977) (3,724) (7,811) Headquarters (916) (2,324) (3,010) (4,843) -------- -------- -------- -------- $(4,830) $(4,526) $54,813 $62,902 -------- -------- -------- -------- -------- -------- -------- -------- 5. Inventories The components of inventories were as follows: September 30, December 31, September 30, (In thousands) 1999 1998 1998 - ------------------------------------------------ ----------------- ----------- Supplemental gas supplies $60,454 $45,266 $44,271 Other materials, supplies and marine fuels 15,886 10,600 11,905 ------- ------- ------- $76,340 $55,866 $56,176 6. Supplemental Cash Flow Information The following are supplemental disclosures of cash flow information: Nine months ended September 30, 1999 1998 (In thousands) - ---------------------------------------------------------------------------- Cash paid during the year for: Interest, net of amounts capitalized $17,711 $18,789 Income taxes $24,523 $25,030 The following is the supplemental disclosure of noncash investing and financing activities: Eastern acquired all of the capital stock of Colonial Gas Company for $336 million, comprised of cash payments of approximately $150 million, net of cash acquired and including transaction costs, and the issuance of 4.2 million shares of common stock valued at $186 million. In addition, Eastern assumed Colonial liabilities of $138 million. Form 10-Q Page 11 Item 2. Management's Discussion and Analysis of Financial Condition and Results of Operations RESULTS OF OPERATIONS Revenues: Consolidated revenues for the third quarter of 1999 were $145 million, up 7% from 1998. Revenues for the first nine months of 1999 were $660 million, down 2% from the prior year. Natural Gas Distribution The natural gas distribution segment includes the operations of Boston Gas Company, Essex Gas Company and Colonial Gas Company, as discussed in Note 3 of Notes to Financial Statements. The effect of the accounting treatment used for revenue recognition and the use of fiscal periods ending August 31 in the prior year at Essex Gas reduced year-to-date comparative revenues by $9 million, but did not significantly impact comparative revenues for the quarter. Revenues for the quarter and year-to-date include Colonial Gas revenues of $4.4 million since the August 31, 1999 date of acquisition. Revenues for the third quarter of 1999 were $70.8 million, an increase of $3.4 million or 5% from 1998. The revenue increase reflects the addition of Colonial Gas revenues, partially offset by the pass through of lower gas costs. Year-to-date revenues were $452.4 million, a decrease of $27.1 million or 6%. The decrease reflects lower non-firm sales ($19 million), the pass through of lower gas costs ($11 million), migration to transportation ($10 million)and the Essex Gas accounting effects, partially offset by the impact of colder weather ($17 million), throughput growth and the additional Colonial Gas revenues. Marine Transportation Revenues for the third quarter of 1999 were $69.7 million, up $2.8 million or 4% from 1998. For the first nine months of 1999, revenues were $196.8 million, up $2.1 million or 1% from the prior year. These increases reflected a strong market for grain exports and increased import activity of ores and steel-related raw materials, partially offset by declines in coal demand by electric utilities, as high stockpiles slowed shipments. Rates per ton mile in the quarter improved modestly over the same period in 1998, primarily due to the strengthening of the grain and import markets discussed above, while rates for spot coal movements were generally lower. Rates also benefited from contractual pass through provisions in multi-year contracts related to fuel prices that were up 22% from 1998 for the quarter, but down 2% for the first nine months. Tonnage transported decreased 2% for both the third quarter and first nine months as compared to last year. Coal tonnage for the third quarter and year-to-date declined 9% and 7%, respectively. Coal ton miles were down 10% for the quarter and 3% year-to-date, mainly from continued weak demand for spot and export movements. Non-coal tonnage increased 11% and 6% for the third quarter and year-to-date, respectively, as a result of the market factors discussed above. Non-coal ton miles increased 13% and 8% for the third quarter and year-to-date periods. Form 10-Q Page 12 Other Services Revenues for the third quarter and first nine months of 1999 were $4.5 million and $11.1 million, respectively, up from $1.7 million and $3.0 million for the comparable periods in 1998, primarily reflecting increases at ServicEdge, which commenced operations in April 1998. Operating Earnings: Consolidated operating earnings for the third quarter of 1999 were a seasonal loss of $4.8 million, as compared to a loss of $4.5 million for 1998. Consolidated operating earnings for the first nine months of 1999 were $54.8 million, down $8.1 million or 13% from the prior year. Natural Gas Distribution Natural gas distribution recorded an operating loss of $9.4 million for the third quarter of 1999, as compared to a loss of $7.6 million for the prior year. The $1.8 million decrease from 1998 reflects the inclusion of Colonial Gas' $1.0 million post-acquisition operating loss, higher operating costs including a $2.2 million charge for an early retirement program at Boston Gas related to integration of Colonial Gas operations, partially offset by lower expenses, principally bad debt expense, reflecting improved collections experience. Operating earnings for the first nine months of 1999 were $45.9 million, down $7.4 million or 14% from 1998. The decrease reflects higher operating costs ($10 million), the effect of the accounting treatment used for revenue recognition and the use of fiscal periods ending August 31 in the prior year ($4 million), Colonial Gas' post-acquisition operating loss and lower average usage. Partially offsetting were the margin impact of 7% colder weather ($6 million) and growth in throughput ($3 million). Year-to-date weather was 3% warmer than normal compared to the 10% warmer than normal weather in 1998. The pass through of lower gas costs and migration to transportation-only service have no impact on the segment's operating earnings. Natural gas distribution earns all of its margins on the local distribution of gas and none on the resale of the commodity. Marine Transportation Operating earnings for the third quarter of 1999 were $6.7 million, a decrease of $1.7 million or 20% from 1999. Operating earnings for the first nine months of 1999 were $15.6 million, down $6.6 million or 30% from the prior year. The decreases for the third quarter and year-to-date reflect higher costs associated with crew labor, port expenses, vessel maintenance and insurance. Drought conditions impacted operations on the lower Mississippi River during the third quarter. Other Services Other services' operating losses for the third quarter and fist nine months of 1999 were $1.2 million and $3.7 million, respectively, as compared to losses of $3.0 million and $7.8 million for the comparable periods in 1998. These losses primarily reflect the operations of ServicEdge. Lower operating losses in 1999 primarily reflect a reduction in costs associated with the start-up of ServicEdge. Form 10-Q Page 13 Other The $2.1 million reduction in the Headquarters operating loss for the third quarter of 1999 primarily reflects the absence of legal and consulting expenses associated with the Essex acquisition in 1998. Net interest expense for the third quarter and first nine months of 1999 increased by $1.0 million and $.6 million, respectively, primarily reflecting the cash paid for the Colonial Gas acquisition and the issuance of debt by Midland in September 1998, partially offset by interest income on a tax settlement and lower working capital requirements for natural gas distribution during the first part of 1999. The reduced interest expense associated with the Midland's issuance of $75 million of 6.25% (effective rate 7.5%) debt, which replaced $50.0 million of 9.9% Midland debt redeemed in March 1998, was largely offset by a combination of lower interest income due to reduced average investment balances and interest rates. Other, net for the third quarter of 1999 includes a $3.2 million reduction in the environmental reserve reflecting regulatory clearance of one site, $2.5 million in environmental-related insurance recoveries and a $1.8 million gain on the sale of a towboat. Other, net in 1998 primarily reflects realized gains on investments of $2.9 million for the quarter and $4.5 million year-to-date. In the first quarter of 1998, Eastern recognized an extraordinary loss of $2.3 million pretax, $1.5 million net, or $.06 per share, on redeeming the Midland debt noted above. In June 1998 the U.S. Supreme Court held the Coal Industry Retiree Health Benefit Act of 1992 ("Coal Act") to be unconstitutional as applied to Eastern. The reversal of the Coal Act reserve resulted in an extraordinary gain of $74.5 million pretax, $48.4 million net, or $2.13 per share, in the second quarter of 1998. Net earnings for the first quarter of 1998 include $8.2 million, or $.36 per share, for the cumulative effect of changing Boston Gas' method of accounting for unbilled revenues to an accrual method. YEAR 2000 ISSUES State of Readiness Eastern has assessed the impact of the year 2000 with respect to its information technology ("IT") and embedded chip systems as well as the Company's exposure to significant third party risks. In such regard, Eastern has completed the replacement or modification of existing systems and technology as required and has taken reasonable steps to assure itself that major customers and critical vendors are also addressing these issues. In addition, Eastern has completed the development and testing of its contingency plans to address major external and internal risks that could potentially impact business operations. Form 10-Q Page 14 With respect to IT systems, natural gas distribution has tested and certified as year 2000 ready all eleven "mission critical" business systems and all eighteen less than critical business systems. Recertification of mission critical systems and integration points has been completed. Conversion and certification testing of all technology infrastructure components has been completed, including mainframe and client server hardware and software, data/voice communications and e-mail systems. All telephone components have been certified as year 2000 ready. All of the Company's desktop hardware, operating system software and applications have been certified as year 2000 ready. To minimize the risk of corruption of previously certified information systems, the Company imposed a freeze on changes to information systems and technology components, effective in early October 1999. The Company expects changes to its production environment to be governed by strict change management procedures and to be limited to emergency production fixes and regulatory-required changes. With respect to embedded chip systems, the Company has completed its inventory, assessment, remediation and certification testing of all date sensitive components containing embedded chips and is year 2000 ready. Natural gas distribution has identified material third party relationships and has completed a detailed survey and assessment of third party readiness. A readiness assessment has been completed of all mission critical suppliers and risk mitigation plans developed. The Company has implemented risk mitigation strategies as required. However, there can be no assurance that third party systems, on which the Company's systems rely, will be timely converted or that any such failure to convert by a third party would not have an adverse effect on the Company's operations. Marine transportation has modified and tested all mainframe-based "mission critical" programs and systems, which are operating on a year 2000 compliant mainframe. Client server and desktop-based systems have also been modified and tested. Data/voice communication and e-mail systems have been tested and replaced where necessary. With respect to embedded chip systems, marine transportation has reviewed its major operating assets and their sub-systems. Based on this review and actions taken, management believes its operations will not be impaired by year 2000 issues with regard to embedded chip technology. Marine transportation has assessed third party risk with respect to significant suppliers, services and customers and is actively seeking written confirmation of third party readiness. While many third parties express confidence in their year 2000 programs and project completion by mid-1999, they do not make 100% guarantees or assurances. Form 10-Q Page 15 Cost of year 2000 remediation Natural gas distribution and marine transportation expect the cost of year 2000 compliance to approximate $16.8 million as detailed in the following chart: Cost through Expected (In millions) September 1999 Subsequent Cost - ------------------------------------------------------------------------------ Natural Gas Distribution - capitalized $8.9 $.2 - expensed 4.4 .8 Marine Transportation - capitalized 1.3 .1 - expensed 1.0 .1 ----- ----- Total $15.6 $1.2 ----- ----- ----- ----- Risks of year 2000 issues Natural gas distribution and marine transportation operations have assessed the most reasonably likely worst case year 2000 scenario. Given its efforts to minimize the risk of year 2000 failure by its internal systems and its distribution network control system, natural gas distribution believes its worst case scenario would involve third party failures that impact data and voice communicationproviders, its electricity provider or a pipeline supplier. Scenarios involving one or more of these failures are addressed in detail as part of the Company's business contingency plans. Similarly, marine transportation believes its worst case scenario would involve third party failures that impact lock and dam operations, rail services for river-served docks and terminals, or telecommunications, electricity and banking services. Major delays to river traffic and customers could result in a loss of revenues. Such failures would require the Company to enact disaster recovery plans, use alternate service providers and seek other routes of navigation, to the extent possible. Contingency plans Natural gas distribution has completed the development of business contingency plans concerning year 2000 risks to its internal systems, embedded chips and significant suppliers. An impact analysis of business processes has been completed which identified voice/data communications, electricity and gas supply as the three major sources of risk. Plans have been developed and desk top tests conducted for each risk area. Live drills were successfully conducted to test the Company's ability to deliver critical services in the event of a failure or disruption in voice/data communications. Marine transportation has completed preparation of a contingency plan, based on an assessment of third party risk. The Company has obtained written and verbal confirmation from providers of critical services as to their year 2000 readiness. To the extent marine transportation believes that any supplier of critical goods or services poses a significant risk of year 2000 failure, the Company has located or identified backup providers. Eastern believes its actions and planning efforts are appropriate to address year 2000 concerns. However, Eastern cannot guarantee that such actions will prevent all or any year 2000 disruptions to itself, its customers or its suppliers. The Company cautions that forward looking statements contained in the year 2000 discussion should be read in conjunction with the following disclosure statement regarding such information. Form 10-Q Page 16 FORWARD-LOOKING INFORMATION: This report and other company statements and statements issued or made from time to time contain certain "forward-looking statements" concerning projected future financial performance, expected plans or future operations. Eastern cautions that actual results and developments may differ materially from such projections or expectations. Investors should be aware of important factors that could cause actual results to differ materially from forward-looking projections or expectations. These factors include, but are not limited to: the effect of pending mergers and other strategic initiatives on earnings and cash flow, Eastern's ability to successfully integrate its new gas distribution operations, temperatures above or below normal in eastern Massachusetts, changes in market conditions for barge transportation, adverse weather and operating conditions on the inland waterways, uncertainties regarding the ultimate profitability of ServicEdge, the functionality of programs and systems in the year 2000, the impact of third parties' year 2000 issues, changes in economic conditions, including interest rates and the value of the dollar versus other currencies, regulatory and court decisions and developments with respect to Eastern's previously-disclosed environmental liabilities. Most of these factors are difficult to predict accurately and are generally beyond Eastern's control. LIQUIDITY AND CAPITAL RESOURCES Management believes that projected cash flows from operations, in combination with currently available resources, is more than sufficient to meet Eastern's 1999 capital expenditure requirements, potential funding of its environmental liabilities, normal debt repayments, anticipated dividends to shareholders and the planned acquisition of EnergyNorth. Consolidated capital expenditures are budgeted at approximately $85 million, with about 80% at natural gas distribution segment and the balance at marine transportation. In addition, marine transportation has signed a series of long-term operating leases for up to 100 additional new barges for delivery by year end. On August 16, 1999, Eastern announced that it is beginning the process of evaluating a number of strategic and financial alternatives to enhance shareholder value. The process will include an assessment of its current strategy of consolidating New England gas distribution utilities, as well as consideration of share repurchases and/or other strategic transactions, including joint ventures or sale of all or a portion of the company. Form 10-Q Page 17 PART II. OTHER INFORMATION Item 6. Exhibits and Reports on Form 8-K (a) List of Exhibits 2 EnergyNorth Merger Agreement, dated as of July 14, 1999. 10.11.1 Change of Control Agreement, dated as of September 22, 1999, by and between Eastern and J. Atwood Ives. 10.11.2 Change of Control Agreement, dated as of September 22, 1999, by and between Eastern and Fred Raskin. 10.11.3 Change of Control Agreement, dated as of September 22, 1999, by and between Eastern and Walter J. Flaherty. 10.11.4 Change of Control Agreement, dated as of September 22, 1999, by and between Eastern and L. William Law, Jr. 10.11.5 Change of Control Agreement, dated as of September 22, 1999, by and between Eastern and Boston Gas Company and Chester R. Messer, II. 10.11.6 Change of Control Agreement, dated as of September 22, 1999, by and between Eastern and Midland Enterprises Inc. and J. Mark Cook. 10.23.1 Amendment, dated as of September 22, 1999, to Eastern's Restricted Stock Plan for Non-Employee Trustees. 27.1 Financial Data Schedule. (b) Reports on Form 8-K September 15, 1999 includes proforma financial results reflecting the merger of Colonial Gas into Eastern. August 19, 1999, Eastern announced that it is beginning the process of evaluating strategic and financial alternatives to enhance shareholder value. July 19, 1999, Eastern Enterprises, EE Acquisition Company, and Energy North, Inc. entered into a Plan of Reorganization. Form 10-Q Page 18 SIGNATURES It is Eastern's opinion that the financial information contained in this report reflects all adjustments necessary to present a fair statement of results for the period reported. All of these adjustments are of a normal recurring nature. Results for the period are not necessarily indicative of results to be expected for the year, due to the seasonal nature of Eastern's operations. All accounting policies have been applied in a manner consistent with prior periods other than changes disclosed in Notes to Financial Statements. Such financial information is subject to year-end adjustments and annual audit by independent public accountants. Pursuant to the requirements of the Securities Exchange Act of 1934, Eastern has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized. EASTERN ENTERPRISES Date: October 29, 1999 By /s/ WALTER J. FLAHERTY Walter J. Flaherty Senior Vice President and Chief Financial Officer Date: October 29, 1999 By /S/ JAMES J. HARPER James J. Harper Vice President and Controller (Chief Accounting Officer) EX-2 2 ENERGYNORTH MERGER AGREEMENT AGREEMENT AND PLAN OF REORGANIZATION This AGREEMENT AND PLAN OF REORGANIZATION (the "Agreement") dated as of July 14, 1999 is by and among Eastern Enterprises (the "Parent"), EE Acquisition Company, Inc., a New Hampshire corporation ("Merger Sub"), and EnergyNorth, Inc. (the "Company"), a New Hampshire corporation. RECITALS A. Upon the terms and subject to the conditions of this Agreement and in accordance with the laws of the State of New Hampshire, the Parent and the Company will enter into a business combination transaction pursuant to which the Company will merge with and into Merger Sub, a wholly-owned subsidiary of Parent. B. The Board of Trustees of the Parent (i) has determined that the Merger is consistent with and in furtherance of the long-term business strategy of the Parent and fair to, and in the best interests of, the Parent and its stockholders, and (ii) has approved this Agreement, the Merger and the other transactions contemplated by this Agreement. C. The Board of Directors of the Company (i) has determined that the Merger is consistent with and in furtherance of the long-term business strategy of the Company and fair to, and in the best interests of, the Company and its stockholders, and (ii) has approved this Agreement, the Merger and the other transactions contemplated by this Agreement, subject to approval of the Merger by the stockholders of the Company. D. The Parent and the Company and Merger Sub desire to make certain representations and warranties and other agreements in connection with the Merger. E. The parties intend, by executing this Agreement, to adopt a plan of reorganization within the meaning of Section 368 of the Internal Revenue Code of 1986, as amended (the "Code"). NOW, THEREFORE, in consideration of the covenants, promises and representations set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: I. THE MERGER I.1. The Merger. At the Effective Time (as defined in Section 1.2) and subject to and upon the terms and conditions of this Agreement and the applicable provisions of New Hampshire law, the Company shall be merged with and into Merger Sub, the separate corporate existence of the Company shall cease and Merger Sub shall continue as the surviving corporation. Merger Sub as the surviving corporation after the Merger is hereinafter sometimes referred to as the "Surviving Corporation". I.2. Effective Time; Closing. Subject to the provisions of this Agreement, the parties hereto shall cause the Merger to be consummated by filing the Articles of merger (the "Articles of Merger") with the Secretary of the State of New Hampshire in accordance with the relevant provisions of New Hampshire law (the time of such filing, or such later time as may be agreed in writing by the parties and specified in the Articles of Merger, being the "Effective Time," and the date on which the Effective Time occurs being the "Effective Date") as soon as practicable on the Closing Date (as herein defined). Unless the context otherwise requires, the term "Agreement" as used herein refers collectively to this Agreement and the Articles of Merger. The closing of the Merger (the "Closing") shall take place at the offices of Ropes & Gray, at a time and date to be specified by the parties, which shall be no later than the 35th day after the satisfaction or waiver of the conditions set forth in Article 6 (other than delivery of items to be delivered at Closing), or at such other time, date and location as the parties hereto agree in writing (the "Closing Date"). At the Closing, (a) the Company shall deliver to the Parent the various Articles and instruments required under Article 6, (b) the Parent and Merger Sub shall deliver to the Company the various Articles and instruments required under Article 6, and (c) the Company and Merger Sub shall execute and file with the Secretary of the State of New Hampshire the Articles of Merger. I.3. Effect of the Merger. At the Effective Time, the effect of the Merger shall be as provided in this Agreement and the applicable provisions of New Hampshire law. Without limiting the generality of the foregoing, and subject thereto, at the Effective Time all the estate, property, rights, privileges, powers and franchises of the Company and Merger Sub shall vest in the Surviving Corporation, and all debts, liabilities and obligations of the Company and Merger Sub shall become the debts, liabilities and obligations of the Surviving Corporation. I.4. Articles of Incorporation; Bylaws. (a) At the Effective Time, the Articles of Incorporation of Merger Sub, as in effect immediately prior to the Effective Time, shall be the Articles of Incorporation of the Surviving Corporation until thereafter amended as provided by law and such Articles of Incorporation; provided, however, that at the Effective Time the Articles of Incorporation of the Surviving Corporation shall be amended so that the name of the Surviving Corporation shall be "EnergyNorth, Inc." Subject to the foregoing, the additional effects of the Merger shall be as provided in NH RSA 293-A: 11.06 (the "NHBCA"). (b) The Bylaws of Merger Sub, as in effect immediately prior to the Effective Time, shall be, at the Effective Time, the Bylaws of the Surviving Corporation until thereafter amended. I.5. Directors and Officers. The directors of Merger Sub immediately prior to the Effective Time shall be the initial directors of the Surviving Corporation, to serve until their respective successors are duly elected or appointed and qualified. The officers of Merger Sub immediately prior to the Effective Time shall be the initial officers of the Surviving Corporation, to serve until their successors are duly elected or appointed or qualified. I.6. Effect on Capital Stock. At the Effective Time, by virtue of the Merger and without any action on the part of Merger Sub, the Company or the holders of any of the following securities: (a) Conversion of Company Common Stock. Each share of Common Stock, $1.00 par value, of the Company (the "Company Common Stock") issued and outstanding immediately prior to the Effective Time (other than any shares of Company Common Stock to be canceled pursuant to Section 1.6(c)) will be canceled and extinguished and automatically converted (subject to Section 1.6(f) and (h)) into the right to receive the following (the "Merger Consideration") at the Effective Time: (i) (A) $47.00 in cash, without interest (the "Per Share Cash Amount"), (B) a number of shares of Common Stock, $1.00 par value, of the Parent (the "Parent Common Stock") equal to the Per Share Cash Amount divided by the Market Value (as defined below) of Parent Common Stock (the "Exchange Ratio"), or (C) a combination of cash and shares of Parent Common Stock determined in accordance with this Section 1.6. For purposes of this Agreement, "Market Value" of Parent Common Stock means the average of the Daily Per Share Prices (as hereinafter defined) of Parent Common Stock for the ten consecutive trading days ending on the third trading day prior to the Effective Date. The "Daily Per Share Price" for any trading day means the weighted average of the per share selling prices of the Parent Common Stock on the New York Stock Exchange (the "NYSE"), as reported in the NYSE Composite Transactions, for that day. Notwithstanding the foregoing, if the Market Value of Parent Common Stock is less than $36.00 per share, Market Value for purposes of this Section 1.6(a)(i) shall mean $36.00 and if the Market Value of Parent Common Stock is greater than $44.00 per share, Market Value for purposes of this Section 1.6(a)(i) shall mean $44.00. (ii) The number of shares of Company Common Stock to be converted into the right to receive cash in the Merger will, subject to Section 1.6(a)(vii), be 49.9% of outstanding shares (the "Cash Election Number"). The remaining shares of Company Common Stock outstanding immediately prior to the Effective Time (the "Stock Election Number") will be converted into the right to receive Parent Common Stock in the Merger. (iii) Subject to the allocation and election procedures set forth in this Section 1.6, each record holder of shares of Company Common Stock immediately prior to the Effective Time will be entitled in respect of each such share (i) to elect to receive cash for such share (a "Cash Election"), (ii) to elect to receive Parent Common Stock for such share (a "Stock Election"), or (iii) to indicate that such record holder has no preference as to the receipt of cash or Parent Common Stock for such share (a "Non-Election"). All such elections will be made on a form designed for that purpose (a "Form of Election"). (iv) If the aggregate number of shares covered by Cash Elections (the "Cash Election Shares") exceeds the Cash Election Number, all shares of Company Common Stock covered by Stock Elections (the "Stock Election Shares") and all shares of Company Common Stock covered by Non-Elections (the "Non-Election Shares") will be converted into the right to receive Parent Common Stock, and the Cash Election Shares will be converted into the right to receive Parent Common Stock and cash in the following manner: Each Cash Election Share will be converted into the right to receive (A) an amount in cash, without interest, equal to the product of (x) the Per Share Cash Amount and (y) a fraction (the "Cash Fraction"), the numerator of which will be the Cash Election Number and the denominator of which will be the total number of Cash Election Shares, and (B) a number of shares of Parent Common Stock equal to the product of (x) the Exchange Ratio and (y) a fraction equal to one minus the Cash Fraction. (v) If the aggregate number of Stock Election Shares exceeds the Stock Election Number, all Cash Election Shares and all Non-Election Shares will be converted into the right to receive cash, and all Stock Election Shares will be converted into the right to receive Parent Common Stock and cash in the following manner: Each Stock Election Share will be converted into the right to receive (A) a number of shares of Parent Common Stock equal to the product of (x) the Exchange Ratio and (y) a fraction (the "Stock Fraction"), the numerator of which will be the Stock Election Number and the denominator of which will be the total number of Stock Election Shares, and (B) an amount in cash, without interest, equal to the product of (x) the Per Share Cash Amount and (y) a fraction equal to one minus the Stock Fraction. (vi) In the event that neither subparagraph (iv) nor subparagraph (v) above is applicable, all Cash Election Shares will be converted into the right to receive cash, all Stock Election Shares will be converted into the right to receive Parent Common Stock, and all Non-Election Shares will be converted into the right to receive Parent Common Stock and the right to receive cash on a proportionate basis so that the Stock Election Number and the Cash Election Number equal their respective percentages of the number of shares of Company Common Stock outstanding as closely as possible. (vii) In the event that the Parent Common Stock (excluding fractional shares to be paid in cash pursuant to Section 1.6(f)) to be issued in the Merger in exchange for shares of Company Common Stock, valued at the lesser of (i) the Market Value and (ii) the average of the high and low trading prices as reported on the NYSE for the Effective Date, minus the aggregate discount, if any, due to trading restrictions on the Parent Common Stock to be issued in the Merger (the "Parent Common Stock Value") is less than 45% of the total consideration to be paid in exchange for the shares of Company Common Stock (including without limitation the amount of cash to be paid in lieu of fractional shares pursuant to Section 1.6(f), plus the number of Dissenting Shares (as defined below) multiplied by the Per Share Cash Consideration and any other payments required to be considered in determining whether the continuity of interest requirement applicable to reorganizations under Section 368 of the Code has been satisfied) (the "Total Consideration"), then the Cash Election Number shall be reduced, and the Stock Election Number shall be correspondingly increased, to the extent necessary so that the Parent Common Stock Value is 45% of the Total Consideration. (b) Cash Election Procedure. (i) The Parent and the Company will each use its reasonable best efforts to cause a Form of Election to be mailed not less than thirty (30) days prior to the anticipated Effective Time to all holders of record of shares of Company Common Stock as of the record date for the Company Stockholders Meeting (as hereinafter defined) and to all persons who become holders of Company Common Stock during the period between the record date for the Company Stockholders Meeting and 5:00 p.m., New York time, on the date seven calendar days prior to the anticipated Effective Time and to make the Form of Election available to all persons who become holders of Company Common Stock subsequent to such time. Elections will be made by holders of Company Common Stock by mailing to the Exchange Agent a Form of Election. Holders of record of shares of Company Common Stock who hold such shares as nominees, trustees or in other representative capacities (a "Representative") may submit multiple Forms of Election, provided that such Representative certifies that each such Form of Election covers all the shares of Company Common Stock held by each Representative for a particular beneficial owner. To be effective, a Form of Election must be properly completed, signed and submitted to the Exchange Agent and accompanied by the certificates representing the shares of Company Common Stock as to which the election is being made (or by an appropriate guarantee of delivery of such certificates as set forth in such Form of Election from a member of any registered national securities exchange or of the National Association of Securities Dealers, Inc. ("NASD") or a bank, trust company, credit union, savings association, broker, dealer or other entity that is a member in good standing of the Securities Transfer Agent's Medallion Program, the NYSE Medallion Signature Guaranty Program or the Stock Exchange Medallion Program). The Parent will have the discretion, which it may delegate in whole or in part to the Exchange Agent, to determine whether Forms of Election have been properly completed, signed and submitted or revoked and to disregard immaterial defects in Forms of Election. The decision of the Parent (or the Exchange Agent) in such matters will be conclusive and binding. Neither the Parent nor the Exchange Agent will be under any obligation to notify any person of any defect in a Form of Election submitted to the Exchange Agent. The Exchange Agent will also make computations contemplated by this Section 1.6 and all such computations will be conclusive and binding on the holders of Company Common Stock. (ii) For the purposes hereof, a holder of Company Common Stock who does not submit a Form of Election which is received by the Exchange Agent prior to the Election Deadline (as defined herein) will be deemed to have made a Non-Election. If the Parent or the Exchange Agent determine that any purported Cash Election or Stock Election was not properly made, such purported Cash Election or Stock Election will be deemed to be of no force and effect and the stockholder making such purported election will for purposes hereof be deemed to have made a Non-Election. (iii) A Form of Election must be received by the Exchange Agent by the close of business on the last business day prior to the Effective Time (the "Election Deadline") in order to be effective. All elections may be revoked until the Election Deadline in writing by holders submitting the Forms of Election. (c) Cancellation of Certain Shares. Each share of Company Common Stock held in the treasury of the Company or owned by Merger Sub, the Parent or any direct or indirect wholly owned subsidiary of the Company or of the Parent immediately prior to the Effective Time shall be canceled and extinguished without any conversion thereof. (d) Capital Stock of Merger Sub. Each share of Common Stock, no par value, of Merger Sub issued and outstanding immediately prior to the Effective Time shall continue to be outstanding following, and shall be unaffected by, the Merger. (e) Adjustment of Exchange Ratio. The Exchange Ratio shall be adjusted to reflect fully the effect of any stock split, reverse split, stock dividend (including any dividend or distribution of securities convertible into Parent Common Stock), reorganization, recapitalization or other like change with respect to Parent Common Stock, occurring after the date hereof and having a record date prior to the Effective Time. (f) Fractional Shares. No fraction of a share of Parent Common Stock will be issued by virtue of the Merger, but in lieu thereof each holder of shares of Company Common Stock who would otherwise be entitled to a fraction of a share of Parent Common Stock (after aggregating all fractional shares of Parent Common Stock to be received by such holder) shall receive from the Parent an amount of cash (rounded to the nearest whole cent), without interest thereon, equal to the product of (i) such fraction, multiplied by (ii) the Average Closing Price. The "Average Closing Price" shall mean the average of the per share closing prices of Parent Common Stock as reported on the NYSE for the ten trading days ending on and including the Effective Date. (g) At the Effective Time, all options to purchase Company Common Stock then outstanding under the EnergyNorth, Inc. 1998 Stock Option Plan shall be assumed by Parent in accordance with Section 5.20 hereof. (h) Dissenting Shares. Each outstanding share of Company Common Stock the holder of which has perfected his right to dissent under applicable law and has not effectively withdrawn or lost such right as of the Effective Time (the "Dissenting Shares") shall not be converted into or represent a right to receive the Merger Consideration, and the holder thereof shall be entitled only to such rights as are granted by applicable law; provided, however, that any Dissenting Share held by a person at the Effective Time who shall, after the Effective Time, withdraw the demand for payment for shares or lose the right to payment for shares, in either case pursuant to the NHBCA, shall be deemed to be converted into, as of the Effective Time, the right to receive cash pursuant to Section 1.6(a) in the same manner as if such shares were Cash Election Shares. The Company shall give Parent prompt notice upon receipt by the Company of any such written demands for payment of the fair value of such shares of Company Common Stock and of withdrawals of such notice and any other instruments provided pursuant to applicable law. Any payments made in respect of Dissenting Shares shall be made by the Surviving Corporation. I.7. Surrender of Certificates. (a) Exchange Agent. The Parent shall select a bank or trust company reasonably acceptable to the Company, which may be the Parent's existing transfer agent, to act as the exchange agent (the "Exchange Agent") in the Merger. (b) The Parent to Provide Merger Consideration. Promptly after the Effective Time, the Parent shall make available to the Exchange Agent for exchange in accordance with this Article 1, certificates for the shares of Parent Common Stock issuable, and cash payable, pursuant to Section 1.6(a) in exchange for outstanding shares of Company Common Stock and cash in an amount sufficient for payment in lieu of fractional shares pursuant to Section 1.6(f) and any dividends or distributions to which holders of shares of Company Common Stock may be entitled pursuant to Section 1.7(d). (c) Exchange Procedures. Promptly after the Effective Time, the Parent shall cause the Exchange Agent to mail to each holder of record (as of the Effective Time) of a certificate or certificates (the "Certificates") that immediately prior to the Effective Time represented outstanding shares of Company Common Stock whose shares were converted into the right to receive the Merger Consideration, together with any cash payable pursuant to Section 1.6(f) and Section 1.7(d), (i) a letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the Certificates shall pass, only upon delivery of the Certificates to the Exchange Agent and shall be in such form and have such other provisions as the Parent may reasonably specify, provided that risk of loss and title shall already have passed with respect to Certificates previously surrendered in connection with Section 1.6(b)(i)) and (ii) instructions for effecting the exchange of the Certificates for the Merger Consideration, together with any cash payable pursuant to Section 1.6(f) and Section 1.7(d). Upon surrender of a Certificates for cancellation to the Exchange Agent or to such other agent or agents as may be appointed by the Parent, together with such letter of transmittal duly completed and validly executed in accordance with the instructions thereto, the holder of such Certificates shall be entitled to receive in exchange therefor the Merger Consideration, together with any cash payable pursuant to Section 1.6(f) and Section 1.7(d), and the Certificates so surrendered shall forthwith be canceled. Until so surrendered, each outstanding Certificates will be deemed from and after the Effective Time, for all corporate purposes, subject to Section 1.7(d) as to the payment of dividends, to evidence only the ownership of the number of full shares of Parent Common Stock and the aggregate Per Share Cash Amount into which such shares of Company Common Stock shall have been so converted and the right to receive an amount in cash in lieu of the issuance of any fractional shares in accordance with Section 1.6(f) and any dividends or distributions payable pursuant to Section 1.7(d). (d) Distributions With Respect to Unexchanged Shares. No dividends or other distributions declared or made after the date of this Agreement with respect to Parent Common Stock with a record date after the Effective Time will be paid to the holder of any unsurrendered Certificates with respect to the shares of Parent Common Stock represented thereby until the holder of record of such Certificates shall surrender such Certificates. Subject to applicable law, following surrender of any such Certificates, there shall be delivered to the record holder thereof Certificates representing whole shares of Parent Common Stock and the aggregate Per Share Cash Amount issuable and payable in exchange therefor, without interest, along with payments of the amount of dividends or other distributions with a record date after the Effective Time then payable with respect to such whole shares of Parent Common Stock and cash in lieu of any fractional shares in accordance with Section 1.6(f). (e) Transfers of Ownership. If any Certificates for shares of Parent Common Stock is to be issued in a name other than that in which the Certificates surrendered in exchange therefor is registered or if any of the other Merger Consideration is to be payable to a person other than the person to whom such Certificates is registered, it will be a condition of the issuance and payment thereof that the Certificates so surrendered will be properly endorsed, accompanied by any documents required to evidence and effect such transfer and otherwise in proper form for transfer and that the person requesting such exchange will have paid to the Parent or any agent designated by it any applicable transfer taxes required by reason of the issuance of a Certificates for shares of Parent Common Stock in any name other than that of the registered holder of the Certificates surrendered, or shall provide evidence that any applicable transfer taxes have been paid. (f) No Liability. Notwithstanding anything to the contrary in this Section 1.7, neither the Exchange Agent, the Parent, the Surviving Corporation nor any other party hereto shall be liable to a holder of shares of Parent Common Stock or Company Common Stock for any amount properly paid to a public official pursuant to any applicable abandoned property, escheat or similar law. (g) Termination of Exchange Agent. Any Merger Consideration made available to the Exchange Agent pursuant to Section 1.7(b) and not exchanged within six months after the Effective Time pursuant to this Section 1.7 shall be returned by the Exchange Agent to Parent, which shall thereafter act as Exchange Agent, and thereafter any holder of unsurrendered Certificates shall look as a general creditor only to Parent for payment of any funds to which such holder may be due, subject to applicable law. I.8. No Further Ownership Rights in Company Common Stock. The Merger Consideration, together with any cash payable pursuant to Sections 1.6(f) and 1.7(d) issued and paid in exchange for shares of Company Common Stock in accordance with the terms hereof shall be deemed to have been issued and paid in full satisfaction of all rights pertaining to such shares of Company Common Stock, and there shall be no further registration of transfers on the records of the Surviving Corporation of shares of Company Common Stock that were outstanding immediately prior to the Effective Time. If after the Effective Time, Certificates are presented to the Surviving Corporation for any reason, they shall be canceled and exchanged as provided in this Article 1. I.9. Lost, Stolen or Destroyed Certificates. In the event any Certificates shall have been lost, stolen or destroyed, the Exchange Agent shall deliver in exchange for such lost, stolen or destroyed Certificates, upon the making of an affidavit of that fact by the holder thereof, the Merger Consideration; provided, however, that the Parent may, in its discretion and as a condition precedent to such delivery, require the owner of such lost, stolen or destroyed Certificates to deliver a bond in such sum as it may reasonably direct as indemnity against any claim that may be made against the Parent or the Exchange Agent with respect to the Certificates alleged to have been lost, stolen or destroyed. I.10. Tax Consequences. It is intended by the parties hereto that the Merger shall constitute a reorganization within the meaning of Section 368 of the Code. The parties hereto adopt this Agreement as a "plan of reorganization" within the meaning of Sections 1.368-2(g) and 1.368-3(a) of the United States Income Tax Regulations. I.11. Taking of Necessary Action; Further Action. If, at any time after the Effective Time, any further action is necessary or desirable to carry out the purposes of this Agreement and to vest the Surviving Corporation with full right, title and possession to all assets, property, rights, privileges, powers and franchises of the Company and Merger Sub, the officers and directors of the Company and Merger Sub are fully authorized in the name of their respective corporations or otherwise to take, and will take, all such lawful and necessary action, so long as such action is consistent with this Agreement. II. REPRESENTATIONS AND WARRANTIES OF THE COMPANY The Company represents and warrants to the Parent, subject to the exceptions set forth in the disclosure schedule supplied by the Company to the Parent (the "Company Disclosure Schedule"), as follows: II.1. Organization of the Company. The Company and each of its Subsidiaries and joint ventures (as defined below) is a corporation or other legal entity duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation or organization, has the requisite corporate or similar power to own, lease and operate its property and to carry on its business as now being conducted, and is duly qualified to do business and in good standing as a foreign corporation or other legal entity in each jurisdiction in which the failure to be so qualified, when taken with all other such failures, would have a Company Material Adverse Effect (as defined below). Included in the Company Disclosure Schedule is a true and complete list of all of the Company's Subsidiaries and joint ventures, together with the jurisdiction of incorporation or organization of each Subsidiary and joint venture and the Company's equity interest therein. The Company has delivered or made available to the Parent a true and correct copy of the Articles of Incorporation and Bylaws of the Company and similar governing instruments of each of its Subsidiaries and joint ventures, each as amended to date. The minute books of the Company and its Subsidiaries and joint ventures made available to the Parent are the only minute books of the Company and its Subsidiaries and joint ventures in the Company's possession, and such minutes contain a reasonably accurate record of all actions taken in all meetings of directors (or committees thereof) and stockholders or actions by written consent since January 1, 1994. The term "Company Material Adverse Effect" means, for purposes of this Agreement, any change, event or effect that is materially adverse to the business, assets (including intangible assets), prospects, financial condition or results of operations of the Company and its Subsidiaries taken as a whole (other than changes that are the effect of economic factors (other than interest rate changes) affecting the economy as a whole or changes that are the effect of factors generally affecting the specific markets in which the Company and its Subsidiaries compete); provided, however, that a Company Material Adverse Effect shall not include any adverse effect primarily attributable to the Merger or the announcement thereof or the transactions contemplated by this Agreement (other than effects arising out of or resulting from actions by any state or federal regulatory authority with respect to this Agreement and the transactions contemplated hereby). "Subsidiary" means, with respect to any party, any corporation or other organization, whether incorporated or unincorporated, of which (i) such party or any other Subsidiary of such party is a general partner (excluding partnerships, the general partnership interests of which held by such party or any Subsidiary of such party do not have a majority of the voting interest in such partnership) or (ii) at least 50% of the securities or other interests having by their terms ordinary voting power to elect a majority of the Board of Directors or others performing similar functions with respect to such corporation or other organization are directly or indirectly owned or controlled by such party or by any one or more of its Subsidiaries, or by such party and one or more of its Subsidiaries. The term "joint venture" of a party shall mean any corporation or other entity (including partnerships and other business associations) that is not a Subsidiary of such party, in which such party or one or more of its Subsidiaries owns an equity interest (other than money market accounts and other short term investments), other than equity interests held for passive investment purposes which are less than 10% of any class of the outstanding voting securities or equity of any such entity. Except as set forth in the Company Disclosure Schedule, none of the Company's Subsidiaries is a "public utility company," a "holding company," a "subsidiary company" or an "affiliate" of any public utility company within the meaning of Section 2(a)(5), 2(a)(7), 2(a)(8) or 2(a)(11) of the Public Utility Holding Company Act of 1935, as amended ("PUHCA"). II.2. The Company Capital Structure. (a) The authorized capital stock of the Company consists of 10,000,000 shares of Common Stock, $1.00 par value, of which, as of June 30, 1999, there were 3,319,718 shares issued and outstanding and no shares in treasury. No shares of Company's capital stock have been issued since that date except shares of Company Common Stock issued in the normal course and consistent with past practice pursuant to the (i) 1998 Stock Option Plan, (ii) Employee Performance and Equity Incentive Plan, (iii) Director Incentive Compensation Plan, and (iv) Dividend Reinvestment and Stock Purchase Plan (the "Company Stock Plans"). All outstanding shares of Company Common Stock are duly authorized, validly issued, fully paid and non-assessable and are not subject to preemptive rights created by statute, the Articles of Incorporation or Bylaws of the Company or any agreement or document to which the Company is a party or by which it is bound. As of June 30, 1999, an aggregate of 520,000 shares of Company Common Stock were reserved for issuance pursuant to the Company Stock Plans. All shares of Company Common Stock subject to issuance as aforesaid, upon issuance on the terms and conditions specified in the instruments pursuant to which they are issuable, would be duly authorized, validly issued, fully paid and nonassessable. (b) The Company Disclosure Schedule includes a true and complete list of all outstanding rights, subscriptions, warrants, calls, preemptive rights, options or other agreements of any kind to purchase or otherwise receive from the Company any shares of the capital stock or any other security of the Company, and all outstanding securities of any kind convertible into or exchangeable for such securities. True and complete copies of all instruments (or other forms of such instruments) referred to in this Section 2.2(b) have been previously furnished to the Parent. There are no stockholder agreements, voting trusts, proxies or other agreements, instruments or understandings with respect to the outstanding shares of capital stock of the Company to which the Company is a party. (c) Except for securities the Company owns directly or indirectly through one or more Subsidiaries, there are no equity securities of any class of any Subsidiary of the Company, or any security exchangeable or convertible into or exercisable for such equity securities, issued, reserved for issuance or outstanding. II.3. Authority. (a) Subject to approval by its stockholders, the Company has all requisite corporate power and authority to enter into this Agreement and to consummate the transactions contemplated hereby. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of the Company, subject only to the approval of this Agreement and the Merger by the Company's stockholders and any necessary or requested review or approval of this Agreement and the Merger by the State of New Hampshire Public Utilities Commission ("NHPUC") and the filing and recording of the Articles of Merger pursuant to the laws of the State of New Hampshire. This Agreement has been duly executed and delivered by the Company. Assuming the due authorization, execution and delivery by the Parent and Merger Sub, upon execution by the Company this Agreement constitutes the valid and binding obligation of the Company, enforceable in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general principles of equity. The execution and delivery of this Agreement by the Company does not, and the performance of this Agreement by the Company will not, (i) conflict with or violate the Articles of Incorporation or Bylaws of the Company or the equivalent organizational documents of any of its Subsidiaries or joint venture, (ii) subject to obtaining the approval by the Company's stockholders of this Agreement as contemplated in Section 5.2 and of the NHPUC in accordance with New Hampshire law and compliance with the other requirements set forth in Section 2.3(b) below, conflict with or violate any law, rule, regulation, order, judgment or decree applicable to the Company or any of its Subsidiaries or joint venture or by which its or any of their respective properties is bound, or (iii) subject to obtaining any third party consents referred to in the final sentence of this Section 2.3(a), result in any breach of or constitute a default (or an event that with notice or lapse of time or both would become a default) under, or impair the rights of the Company or any Subsidiary or joint venture or alter the rights or obligations of any third party under, or give to others any rights of termination, amendment, acceleration or cancellation of, or result in the creation of a lien or encumbrance on any of the properties or assets of the Company or any of its Subsidiaries or joint venture pursuant to, any note, bond, mortgage, indenture, contract, agreement, lease, license, permit, franchise or other instrument or obligation to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries or its or any of their respective properties are bound or affected, except, with respect to clauses (ii) and (iii), for any such conflicts, violations, defaults or other occurrences that would not have a Company Material Adverse Effect. The Company Disclosure Schedule lists all consents, waivers and approvals under any of the Company's or any of its Subsidiaries' agreements, contracts, licenses or leases required to be obtained in connection with the consummation of the transactions contemplated hereby, except for those the absence of which would not have a Company Material Adverse Effect. (b) No consent, approval, order or authorization of, or registration, declaration or filing with any court, administrative agency or commission or other governmental or regulatory body or authority or instrumentality ("Governmental Entity") is required by or with respect to the Company in connection with the execution and delivery of this Agreement or the consummation of the transactions contemplated hereby, except for (i) the filing of the Articles of Merger with the Secretary of State of New Hampshire, (ii) the filing of the Proxy Statement (as defined in Section 2.18) with the United States Securities and Exchange Commission (the "SEC") in accordance with the Securities Exchange Act of 1934, as amended (the "Exchange Act"), (iii) the filing of a Current Report on Form 8-K with the SEC, (iv) the filing with the Antitrust Division of the United States Department of Justice (the "Antitrust Division") and the Federal Trade Commission (the "FTC") of such forms as may be required by the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (the "HSR Act") and the termination or expiration of all applicable waiting periods thereunder, (v) approval of the Merger and the related transactions contemplated hereunder by NHPUC in accordance with New Hampshire law and any required filing thereof with the Secretary of State of New Hampshire, (vi) the approval of the Merger by the SEC pursuant to PUHCA, (vii) such consents, approvals, orders, authorizations, registrations, declarations and filings as may be required under applicable federal and state securities laws and the laws of any foreign country and (viii) such other consents, authorizations, filings, approvals and registrations that, if not obtained or made, would not have a Company Material Adverse Effect or a material adverse effect on the ability of the parties to consummate the Merger. II.4. Takeover Laws; Rights Plans. (a) The Company has taken all action required to be taken by it in order to exempt this Agreement and the transactions contemplated hereby from, and this Agreement and the transactions contemplated hereby are exempt from, the requirements of any "moratorium," "control share," "fair price" or other anti-takeover laws and regulations (collectively, "Takeover Laws") of the State of New Hampshire, including NH RSA 421-A and under any similar provisions included in the Company's charter and by-laws. (b) The Company has (1) duly entered into an appropriate amendment to the Company's Rights Agreement dated as of June 18, 1990 (the "Rights Agreement") between the Company and State Street Bank and Trust Company, which amendment has been provided to Parent, and (2) taken all other action necessary or appropriate so that the entering into of this Agreement does not and will not result in the ability of any person to exercise any Rights under the Rights Agreement or enable or require the Rights issued thereunder to separate from the shares of Company Common Stock to which they are attached or to be triggered or become exercisable or redeemable. (c) No "Distribution Date" or "Triggering Event" (as such terms are defined in the Rights Agreement) has occurred. II.5. SEC Filings; Company Financial Statements. (a) Each of the Company and EnergyNorth Natural Gas, Inc. has filed all forms, reports and documents required to be filed by it with the SEC since January 1, 1996. All such required forms, reports and documents (including those that the Company or EnergyNorth Natural Gas, Inc. may file after the date hereof until the Closing) are referred to herein as the "Company SEC Reports". As of their respective dates, the Company SEC Reports (i) were or will be prepared in compliance in all material respects with the requirements of the Securities Act of 1933, as amended (the "Securities Act") or the Exchange Act, as the case may be, and the rules and regulations of the SEC thereunder applicable to such Company SEC Reports, and (ii) did not or will not at the time they were or are filed (or if amended or superseded by a filing prior to the Closing, then on the date of such filing) contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances in which they were made, not misleading. None of the Company's Subsidiaries, other than EnergyNorth Natural Gas, Inc., is required to file any forms, reports or other documents with the SEC. (b) Each of the consolidated financial statements (including, in each case, any related notes thereto) contained in the Company SEC Reports (the "Company Financials"), including any Company SEC Reports filed after the date hereof until the Closing, (i) complied or will comply as to form in all material respects with the published rules and regulations of the SEC with respect thereto, (ii) was or will be prepared in accordance with generally accepted accounting principles ("GAAP") applied on a consistent basis throughout the periods involved (except as may be indicated in the notes thereto or, in the case of unaudited interim financial statements, as may be permitted by the SEC on Form 10-Q under the Exchange Act) and (iii) fairly presented or will fairly present, in all material respects, the consolidated financial position of the Company and its Subsidiaries at the respective dates thereof and the consolidated results of its operations and cash flows for the periods indicated, consistent with the books and records of the Company, except that the unaudited interim financial statements were or are subject to normal and recurring year-end adjustments which were not, or are not expected to be, material in amount. The balance sheet of the Company contained in the Company's SEC Report as of March 31, 1999 is hereinafter referred to as the "Company Balance Sheet" Except as disclosed in the Company Disclosure Schedule and except for obligations under this Agreement, neither the Company nor any of its Subsidiaries has any liabilities (absolute, accrued, contingent or otherwise) of a nature required to be disclosed on a balance sheet or in the related notes to the consolidated financial statements prepared in accordance with GAAP that are, individually or in the aggregate, material to the business, results of operations or financial condition of the Company and its Subsidiaries taken as a whole, except liabilities (i) provided for in the Company Balance Sheet and the related notes or (ii) incurred since the date of the Company Balance Sheet in the ordinary course of business consistent with past practices or (iii) incurred in connection with the transactions contemplated hereby. II.6. Absence of Certain Changes or Events. Since March 31, 1999, there has not occurred any Company Material Adverse Effect and there has not been, occurred or arisen any: (a) transaction by the Company or its Subsidiaries except in the ordinary course of business as conducted on the date of the Company Balance Sheet and consistent with past practices; (b) except as permitted by this Agreement, amendments or changes to the Articles of Incorporation or Bylaws of the Company; (c) individual capital expenditure or commitment, or series of related capital expenditure or commitments, by the Company or its Subsidiaries outside the ordinary course of business exceeding $150,000; (d) destruction of, damage to or loss of any assets material to the business of the Company and its Subsidiaries taken as a whole (whether or not covered by insurance); (e) any cancellation or termination or written notice of cancellation or termination by any customer that is material to the Company and its Subsidiaries, taken as a whole, of its relationship or a portion of its relationship with the Company or any of its Subsidiaries that is material to the Company and its Subsidiaries, taken as a whole, or any decrease, not in the ordinary course of business, in the usage or purchase of the products or services of the Company or any of its Subsidiaries by any such customer that is material to the Company and its Subsidiaries, taken as a whole, or any by-pass transaction involving any such customer of the Company, other than any of the foregoing that is primarily the result of weather factors; (f) labor trouble or claim of wrongful discharge or other unlawful labor practice or action that is reasonably likely to have a Company Material Adverse Effect; (g) material change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company; (h) material revaluation by the Company or its Subsidiaries of any of its significant assets; (i) except as permitted by this Agreement, declaration, setting aside or payment of a dividend or other distribution with respect to the capital stock of the Company (other than regular quarterly dividends in accordance with past practice), or any direct or indirect redemption, purchase or other acquisition by the Company of any of its capital stock; (j) except as permitted by this Agreement, increase in the salary or other compensation payable or to become payable to any of its officers or directors or, other than in the ordinary course of business and consistent with past practices, any of its employees or advisors, or the declaration, payment or contractually binding commitment or obligation of any kind for the payment of a bonus or other additional salary or compensation to any such person except for increases, payments or commitments in the ordinary course of business and consistent with past practices; (k) sale, lease, license or other disposition of any assets or properties material to the Company and its Subsidiaries, taken as a whole, except in the ordinary course of business; (l) except as would not reasonably be expected to result in a Company Material Adverse Effect, amendment or termination of any material contract, agreement or license to which the Company or any of its Subsidiaries is a party or by which it is bound except for amendments in the ordinary course of business or scheduled expiration pursuant to the terms of the contract, agreement or license and not as a result of any breach; (m) except in the ordinary course of business and consistent with past practices or as permitted by this Agreement, loan by the Company or any of its Subsidiaries to any person or entity, incurring by the Company or any Subsidiary of any indebtedness (except for indebtedness incurred in the ordinary course under existing credit lines or arrangements set forth in the Company Disclosure Schedule), guaranteeing by the Company or any Subsidiary of any indebtedness, issuance or sale of any debt securities of the Company or any Subsidiary or guaranteeing of any debt securities of others; (n) waiver or release of any right or claim material to the Company and its Subsidiaries, taken as a whole, including any write-off or other compromise of any account receivable of the Company or any Subsidiary, other than in the ordinary course of business and consistent with past practices; (o) adoption, material amendment or modification, or termination of any Plan (as defined in Section 2.14) by the Company or any of its Subsidiaries; (p) regulatory decision by the NHPUC that would have a material adverse impact on the Surviving Corporation; or (q) contractually binding commitment, understanding or agreement by the Company or any of its Subsidiaries thereof to do any of the things described in the preceding clauses (a) through (o) (other than this Agreement). (r) II.7. Tax Matters. (a) The Company and its Subsidiaries have filed all material tax reports and returns required to be filed by them and have paid or will timely pay all material taxes and other charges shown as due on such reports and returns. Neither the Company nor any of its Subsidiaries is delinquent in the payment of any material tax assessment or other governmental charge (including without limitation applicable withholding taxes). Any provision for taxes reflected in the Company Balance Sheet has been properly reflected in accordance with GAAP. There are no tax liens on any assets of the Company or its Subsidiaries except for current taxes not yet due and other non-material tax amounts. (b) There has not been any audit of any tax return filed by the Company or any of its Subsidiaries for any period beginning on or after January 1, 1994 and no audit of any tax return filed by the Company or any of its Subsidiaries is in progress and neither the Company nor any Subsidiary has been notified by any tax authority that any such audit is contemplated or pending. Neither the Company nor any Subsidiary has received any claim in writing from any tax authority concerning any tax liability for any period for which tax returns have been filed. No extension of time with respect to any date on which a tax return was or is to be filed by the Company or any of its Subsidiaries is in force, and no waiver or agreement by the Company or any of its Subsidiaries is in force for the extension of time for the assessment or payment of any tax. For purposes of this Agreement, the term "tax" includes all federal, state, local and foreign taxes or assessments, including income, sales, gross receipts, excise, use, value added, royalty, franchise, payroll, withholding, property and import taxes and any interest or penalties applicable thereto. (c) Neither the Company nor any of its Subsidiaries has any liability for any taxes of any person other than the Company and its Subsidiaries (i) under Treasury Regulation Section 1.1502-6 (or any similar provision of state, local or foreign law), (ii) as a transferee or successor, (iii) by contract or (iv) otherwise. Neither the Company nor any of its Subsidiaries has engaged in any intercompany transactions within the meaning of Treasury Regulations Section 1.1502-13, or its predecessors, for which any income or gain will remain unrecognized as of the close of the last taxable year prior to the Closing Date. (d) Neither the Company nor any of its Subsidiaries has agreed to, or is required to, make any adjustments under Section 481(a) of the Code by reason of a change in accounting method or otherwise. (e) Each agreement, contract or arrangement to which the Company or any of its Subsidiaries is a party that could result, on account of the transactions contemplated hereunder, separately or in the aggregate, in the payment of any "excess parachute payments" within the meaning of Section 280G of the Code is set forth in Section 2.7 of the Company Disclosure Schedule. (f) No indebtedness of the Company or any of its Subsidiaries is "corporate acquisition indebtedness" within the meaning of Section 279(b) of the Code. To the best knowledge of the Company, no foreign person owns or has owned beneficially more than five percent of the total fair market value of Company Common Stock during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code. (g) Neither the Company nor any of its Subsidiaries has constituted a "distributing corporation" in a distribution of stock qualifying for tax-free treatment under Section 355 of the Code in the past 24 month period or in a distribution which could otherwise constitute part of a "plan" or a series of "related transactions" (within the meaning of Code Section 355(e)). (h) Section 2.7 of the Company Disclosure Schedule lists all examination reports and statements of deficiencies asserted, assessed against or agreed to by or on behalf of the Company or any Subsidiary received or agreed to with respect to any tax period beginning on or after January 1, 1994. No claim has ever been made by any tax authority that the Company or any Subsidiary is or may be subject to taxation in a jurisdiction where it does not file tax returns. II.8. Regulation as a Utility. (a) The Company is a "holding company" exempt from registration under Section 3(a)(1) of PUHCA. (b) The Company is not subject to regulation as a natural gas distribution utility by the State of New Hampshire. The Company's subsidiary, EnergyNorth Natural Gas, Inc., is subject to regulation as a natural gas distribution utility by the NHPUC. (c) Neither the Company nor any of its Subsidiaries is currently subject to regulation by the Federal Energy Regulation Commission under the Federal Power Act or as a "natural gas company" under the Natural Gas Act or is subject to regulation as a public utility or public service company (or similar designation) by any state in the United States other than New Hampshire or in any foreign country. II.9. Title to Properties; Absence of Liens and Encumbrances. (a) The Company and its Subsidiaries have good and valid title to, or have a valid and enforceable right to use or a valid and enforceable leasehold interest in, all real property (including all buildings, fixtures and other improvements thereto) owned by them and material to the conduct of the business of the Company and its Subsidiaries, taken as a whole, as such business is now being conducted, except for easements granted in the ordinary course of business. Neither the Company's nor any of its Subsidiaries' ownership of or leasehold interest in any such property is subject to any mortgage, pledge, lien, option, conditional sale agreement, encumbrance, security interest, title exception or restriction or claim or charge of any kind ("Encumbrances"), except for such Encumbrances as are set forth in the Company Disclosure Schedule or the Company Financials or are not in the aggregate reasonably likely to have a Company Material Adverse Effect. Such property is, in the aggregate, in condition and repair, normal wear and tear excepted, adequate in all material respects for the continued conduct of the business of the Company and its Subsidiaries, taken as whole, in the manner in which it is currently conducted, except to the extent that the condition of any property is not in the aggregate reasonably likely to have a Company Material Adverse Effect. (b) The Company and its Subsidiaries have good and valid title to, or, in the case of leased properties and assets, valid leasehold interests in, all of their tangible personal properties and assets, used or held for use in their business, and such properties and assets, as well as all other properties and assets of the Company and its Subsidiaries, whether tangible or intangible, are free and clear of any Encumbrances, except for such Encumbrances as are set forth in the Company Disclosure Schedule or the Company Financials or are not in the aggregate reasonably likely to have a Company Material Adverse Effect. Such property is, in the aggregate, in condition and repair, normal wear and tear excepted, adequate in all material respects for the continued conduct of the business of the Company and its Subsidiaries, taken as a whole, in the manner in which it is currently conducted, except to the extent that the condition of any property is not in the aggregate reasonably likely to have a Company Material Adverse Effect. II.10. Intellectual Property. The Company and its Subsidiaries own, or are licensed or otherwise possess legally enforceable rights to use, all patents, trademarks, trade names, service marks, copyrights, and any applications therefor, schematics, technology, know-how, computer software programs or applications, and tangible or intangible proprietary information or material that are required for the conduct of business of the Company or its Subsidiaries as currently conducted, the absence of which would have a Company Material Adverse Effect (collectively, the "Company Intellectual Property Rights"). All of the Company Intellectual Property Rights are owned or licensed by the Company or one of its Subsidiaries, free and clear of any and all Encumbrances, except for those Encumbrances under or set forth in applicable license agreements or that would not, individually or in the aggregate, have a Company Material Adverse Effect, and, to the knowledge of the Company, neither the Company nor any of its Subsidiaries has forfeited or otherwise relinquished any Company Intellectual Property Rights which forfeiture would have a Company Material Adverse Effect. To the knowledge of the Company, the use of the Company Intellectual Property Rights by the Company and its Subsidiaries does not, in any material respect, conflict with, infringe upon, violate or interfere with or constitute an appropriation of any right, title, interest or goodwill (including, without limitation, any intellectual property right, trademark, trade name, patent, service mark, brand mark, brand name, computer program, database, industrial design, copyright or any pending application therefor) of any other person, and neither the Company nor any of its Subsidiaries has received notice of any claim or otherwise knows that any of the Company Intellectual Property Rights is invalid, conflicts with the asserted rights of any other person, has not been used or enforced or has failed to be used or enforced in a manner that would result in the abandonment, cancellation or unenforceability of any of the Company Intellectual Property Rights, except for such conflicts, infringements, violations, interferences, claims, invalidity, abandonments, cancellations or unenforceability that would not, individually or in the aggregate, have a Company Material Adverse Effect. II.11. Compliance; Permits; Restrictions. (a) Neither the Company nor any of its Subsidiaries is in conflict with, or in default or violation of, (i) any law, rule, regulation, order, judgment or decree applicable to the Company or any of its Subsidiaries or by which its or any of their respective properties is bound or affected, or (ii) any note, bond, mortgage, indenture, contract, agreement, lease, license, permit, franchise or other instrument or obligation to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries or its or any of their respective properties is bound or affected, except for any conflicts, defaults or violations that are not reasonably likely to have a Company Material Adverse Effect. (b) The Company and its Subsidiaries hold all consents, permits, licenses, variances, exemptions, orders and approvals from governmental authorities that are material to the operation of the business of the Company and its Subsidiaries taken as a whole (collectively, the "Company Permits"). The Company and its Subsidiaries are in compliance with the terms of the Company Permits, except where the failure to so comply is not reasonably likely to have a Company Material Adverse Effect. II.12. Litigation. There is no action, suit or proceeding of any nature pending or to the Company's knowledge threatened against the Company or any of its Subsidiaries, or any of their respective properties, officers or directors, in their respective capacities as such (i) in which injunctive or other equitable relief or damages in excess of $150,000 are or are reasonably likely to be sought against the Company or any Subsidiary or that otherwise are reasonably likely to result in a Company Material Adverse Effect or (ii) that in any manner challenges or seeks to prevent, enjoin, alter or delay any of the transactions contemplated by this Agreement. To the Company's knowledge, there is no investigation pending or threatened against the Company or any of its Subsidiaries, their respective properties or any of their respective officers or directors by or before any Governmental Entity that is reasonably likely to have a Company Material Adverse Effect. II.13. Brokers' and Finders' Fees. Except for fees payable to Salomon Smith Barney Inc. and disclosed to the Parent, the Company has not incurred, nor will it incur, directly or indirectly, any liability for brokerage or finders' fees or agents' commissions or any similar charges in connection with this Agreement or any transaction contemplated hereby. II.14. Employee Benefit Plans. The Company Disclosure Schedule sets forth a complete list of all pension, profit sharing, retirement, deferred compensation, employment, welfare, insurance, disability, incentive bonus, stock option, restricted stock, stock incentive, phantom stock, vacation pay, severance pay, fringe benefits and similar plans, programs, agreements or arrangements, benefiting more than one individual, including without limitation all employee benefit plans as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), maintained by the Company or its Subsidiaries or to which Company or any of its Subsidiaries are parties or are required to contribute or under which the Company or any of its Subsidiaries is or may be required to provide benefits other than any multiemployer plan as defined in Section 4001(a)(3) of ERISA or any other plans or arrangements sponsored and maintained by a union (and not by the Company or its Subsidiaries) (the "Plans"). The Company has delivered or made available to the Parent current, accurate and complete copies of (i) each Plan that has been reduced to writing, together with all amendments; (ii) a summary of the material terms of each Plan that has not been reduced to writing, as amended; (iii) the summary plan description for each Plan subject to ERISA and, in the case of each other Plan, any similar employee summary (including employee handbook description) of the Plan; (iv) for each Plan intended to be qualified and each Plan-related funding arrangement intended to be exempt under Section 401(a), Section 501(a) or Section 501(c)(9) of the Code, the most recent determination letter or exemption determination issued by the Internal Revenue Service ("IRS"); (v) for each Plan with respect to which a Form 5500 series annual report is required to be filed, the most recently filed such annual report and the annual report for the two preceding years, together with all schedules and exhibits; (vi) all insurance contracts, administrative services contracts, trust agreements, investment management agreements or similar agreements maintained in connection with the Plans or any of them; and (vii) copies of any correspondence with the IRS, the Department of Labor ("DOL") or other U.S. government agency or department relating to an audit or an asserted or assessed penalty with respect to a Plan or relating to requested relief from any liability or penalty (including, but not limited to, any correspondence relating to the IRS's EPRSC, VCR or CAP programs, or the DOL's amnesty programs for late filers and non-filers). No employee benefit handbook or similar employee communication relating to any Plan nor any communication of benefits under such Plan from an administrator thereof describes the terms of such Plan in a manner that is materially inconsistent with the documents and summary plan descriptions relating to such Plan that have been delivered pursuant to the foregoing sentence. The Company Disclosure Schedule identifies each "multiemployer plan" as defined in Section 4001(a)(3) of ERISA and any arrangement sponsored and maintained by a union (and not by the Company or its subsidiaries) which the Company or any Subsidiary maintains or is obligated to maintain or to which the Company or any Subsidiary contributes or is obligated to contribute. No deficiency in funding levels or other circumstance exists and no event has occurred that has resulted or that could result in a liability to Company or any Subsidiary under Subtitle E of Title IV of ERISA, except for such liabilities which, individually and in the aggregate, would not result in a Company Material Adverse Effect, and the consummation of the transactions contemplated by this Agreement will not result in any withdrawal liability under such Subtitle. Except for PBGC premiums paid in the ordinary course, neither the Company nor any Subsidiary has incurred any liability under Title IV of ERISA which has not been satisfied in full nor, except for such liabilities which, individually and in the aggregate, would not result in a Company Material Adverse Effect has any event occurred that could result in any such liability. Each Plan maintained by the Company or a Subsidiary and each related fund which is intended to be qualified or exempt under Section 401(a), Section 501(a) or 501(c)(9) of the Code is so qualified or exempt except where the failure to be so qualified or exempt would not result in a Company Material Adverse Effect. Without limiting the generality of the immediately preceding sentence, each Plan, if any, containing an account described in Section 401(h) of the Code has been maintained in accordance with Section 401(h) of the Code and the limitations described therein and in applicable regulations. Each Plan has been administered in all material respects in accordance with the terms of such Plan and the provisions of all applicable statutes, orders or governmental rules or regulations, and nothing has been done or omitted to be done with respect to any Plan or related fund that has resulted or could result in any material liability on the part of the Company or a Subsidiary under Title I of ERISA or Chapter 43 of the Code. All reports required to be filed with respect to each Plan, including without limitation Form 5500 series annual reports, have been timely filed. No "reportable event" as defined in Section 4043 of ERISA, other than any such event for which the notice period has been waived, has occurred with respect to any Plan subject to Title IV of ERISA. Except to the extent specified in the Company Disclosure Schedule, each Plan that is subject to Title IV of ERISA is fully funded on a termination basis. All contributions required to be made to any Plan by applicable law or regulation or by any Plan document or other contractual undertaking, and all premiums due or payable with respect to insurance policies funding any Plan, have been timely made or paid in full or, to the extent not required to be made or paid on or before the date hereof, have been fully reflected on the Company Financials. All claims for welfare benefits incurred by employees and their eligible dependents on or before the Closing are or prior to the Closing will be fully insured under fully paid up third-party insurance policies or, if self-funded, have been adequately reserved for on the Company Financials. Except for benefit claims in the ordinary course, there are no pending or, to the best knowledge of the Company, threatened claims with respect to any Plan. Except for continuation of health coverage to the extent required under Section 4980B of the Code or Part 6 of Subtitle B of Title I of ERISA or applicable state law or as otherwise set forth in the Company Disclosure Schedule, no Plan that is a "welfare plan" as defined in Section 3(1) of ERISA provides for any benefits following retirement or other termination of employment. Except as set forth in the Company Disclosure Schedule, each Plan can be amended, terminated or modified prospectively on and after the Effective Time without advance notice to or consent by any employee, former employee or beneficiary, except as required by law. Except as set forth in the Company Disclosure Schedule, neither the execution and delivery of this Agreement nor the consummation of any of the transactions contemplated hereby will (either alone or in conjunction with any other event) result in, cause the accelerated funding, vesting or delivery of, or increase the amount or value of, any payment or benefit to any employee, officer or director of the Company or any of its Subsidiaries. II.15. Employment Matters. (a) The Company and each of its Subsidiaries (i) is in compliance in all material respects with all applicable foreign, federal, state and local laws, rules and regulations that are material to the Company and its Subsidiaries, taken as a whole, respecting employment, employment practices, terms and conditions of employment and wages and hours, in each case, with respect to employees; (ii) has withheld all amounts required by law or by agreement to be withheld from the wages, salaries and other payments to employees; (iii) is not liable for any arrears of wages or any taxes or any penalty for failure to comply with any of the foregoing; and (iv) is not liable for any payment to any trust or other fund or to any Governmental Entity, with respect to unemployment compensation benefits, social security or other benefits or obligations for employees (other than routine payments to be made in the normal course of business and consistent with past practice). (b) No material work stoppage or labor strike against the Company or any of its Subsidiaries is pending or, to the knowledge of the Company, threatened. Neither the Company nor any of its Subsidiaries is involved in or, to the knowledge of the Company, threatened with, any labor dispute, grievance, or litigation relating to labor, safety or discrimination matters involving any employee, including without limitation charges of unfair labor practices or discrimination complaints, that have a Company Material Adverse Effect. Neither the Company nor any of its Subsidiaries has engaged in any unfair labor practices within the meaning of the National Labor Relations Act that is reasonably likely to, in the aggregate, have a Company Material Adverse Effect. Neither the Company nor any of its Subsidiaries is presently a party to or bound by any collective bargaining agreement or union contract with respect to employees other than as set forth in the Company Disclosure Schedule and no collective bargaining agreement is being negotiated by the Company or any of its Subsidiaries. To the knowledge of the Company, no union organizing campaign or activity with respect to non-union employees of the Company or any of its Subsidiaries is ongoing, pending or threatened. II.16. Environmental Matters. (a) Except as would not have a Company Material Adverse Effect, no amount of any substance that has been designated by any Governmental Entity or by applicable federal, state or local law to be radioactive, hazardous or otherwise to pose an unreasonable danger to human health or the environment, including without limitation all substances listed as hazardous substances pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended, or defined as a hazardous waste pursuant to the United States Resource Conservation and Recovery Act of 1976, as amended, and the regulations promulgated pursuant to said laws, (a "Hazardous Material"), is present as a result of the actions of the Company or any of its Subsidiaries in, on or under any property, including the land and the improvements, ground water and surface water thereof, that the Company or any of its Subsidiaries has at any time owned, operated, occupied or leased, and to the knowledge of the Company, no Hazardous Materials are present in, on or under such property, including the improvements, ground water and surface water thereof, as a result of the conduct of other parties. To the knowledge of the Company, the Company Disclosure Schedule lists all locations that the Company or any of its Subsidiaries formerly owned or leased where Hazardous Materials are present in a volume or concentration that would reasonably be expected to have a Company Material Adverse Effect. (b) Except as would not have a Company Material Adverse Effect, (i) neither the Company nor any of its Subsidiaries has generated, transported, stored, used, manufactured, disposed of, released or exposed its employees or others to Hazardous Materials in violation of, or in a manner which could give rise to liabilities under, any law in effect prior to or as of the date hereof, nor (ii) has the Company or any of its Subsidiaries disposed of, transported, sold, or manufactured any product containing a Hazardous Material (collectively "Hazardous Materials Activities") in violation of any rule, regulation, treaty or statute promulgated by any Governmental Entity in effect prior to or as of the date hereof to prohibit, regulate or control Hazardous Materials or any Hazardous Material Activity. (c) The Company and its Subsidiaries currently hold all environmental approvals, permits, licenses, clearances and consents (the "Company Environmental Permits") necessary for the conduct of the Company's and its Subsidiaries' Hazardous Material Activities and other businesses of the Company and its Subsidiaries, taken as a whole, as such activities and businesses are currently being conducted, except where the failure to so hold would not have a Company Material Adverse Effect. (d) No action, proceeding, revocation proceeding, amendment procedure, writ, injunction or claim is pending, or to the Company's knowledge, threatened concerning any Company Environmental Permit, Hazardous Material in, on or under any property owned or leased at any time by the Company or any of its Subsidiaries or any Hazardous Materials Activity of the Company or any of its Subsidiaries, in which injunctive or other equitable relief or damages in excess of $150,000 is or is reasonably likely to be sought against the Company or any Subsidiary or that otherwise would have a Company Material Adverse Effect. II.17. Agreements, Contracts and Commitments. Except as identified in the Company Disclosure Schedule or listed in the Exhibit Index to the Company's Form 10-K for the year ended September 30, 1998 (the "Company 10-K"), neither the Company nor any of its Subsidiaries is a party to or is bound by: (a) any agreement, contract or contractually binding commitment containing any covenant materially limiting the freedom of the Company or any of its Subsidiaries to engage in any line of business or compete with any person; (b) any agreement, contract or contractually binding commitment relating to capital expenditures and involving future obligations in excess of $150,000 and not cancelable without penalty; (c) any agreement, contract or contractually binding commitment currently in force relating (i) to the disposition or acquisition of assets material to the Company and its Subsidiaries, taken as a whole, not in the ordinary course of business or (ii) any ownership interest in any corporation, partnership, joint venture or other business enterprise (other than the Company's wholly-owned subsidiaries and money market accounts and other short term investments); (d) any mortgages, indentures, loans or credit agreements or security agreements relating to assets material to the Company and its Subsidiaries, taken as a whole, or other agreements or instruments relating to the borrowing of money or extension of credit involving more than $150,000; (e) any other agreement, contract, binding commitment or lease which requires annual payments by the Company or any of its Subsidiaries of $150,000 or more in the aggregate and is not cancelable without penalty within thirty (30) days. (f) any consulting arrangements and contracts for professional, advisory and other services involving payments of more than $150,000 in any year, including contracts under which the Company or any of its Subsidiaries performs services for others; (g) any material contracts relating to the source or supply of gas, propane and other raw materials essential to the conduct of the business of the Company and its Subsidiaries, taken as a whole, and any financial derivatives master agreements, confirmations, or futures account opening agreements and/or brokerage statements evidencing financial hedging or other trading activities with respect to the foregoing; (h) any contracts, agreements or contractually binding commitments relating to the employment, engagement, compensation or termination of directors, officers, employees or agents of the Company or any of its Subsidiaries not included under Plans (as defined in Section 2.14); (i) any collective bargaining agreements; (j) any agreement, contract or instrument (including amendments thereto) to which the Company or any of its Subsidiaries is a party or by which any of them is bound that is required to be included in the Company 10-K; and (k) any other contracts made other than in the usual or ordinary course of business of the Company or any of its Subsidiaries to which the Company or any of its Subsidiaries is a party or under which the Company or any of its Subsidiaries is obligated and material to the Company and its Subsidiaries, taken as a whole. Neither the Company nor any of its Subsidiaries, nor to the Company's knowledge any other party to a Company Contract (as defined below), has breached, violated or defaulted under, or received notice that it has breached violated or defaulted under, any of the terms or conditions of any of the agreements, contracts or commitments to which the Company or any Subsidiary is a party or by which it is bound of the type described in clauses (a) through (k) above (any such agreement, contract or commitment, a "Company Contract") in such a manner as would permit any other party to cancel or terminate any such Company Contract, or would permit any other party to seek damages, in either case, which would have a Company Material Adverse Effect. II.18. Statements; Proxy Statement/Prospectus. The information to be supplied by the Company for inclusion in the Registration Statement on Form S-4 to be filed to register under the Securities Act Parent Common Stock issuable pursuant to Section 1.6 (the "Registration Statement") shall not at the time the Registration Statement is filed with the SEC or at the time it becomes effective under the Securities Act, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. The information supplied by the Company for inclusion in the proxy statement/prospectus to be sent to the stockholders of the Company in connection with the meeting of the Company's stockholders to consider the approval of this Agreement (the "Company Stockholders' Meeting") (such proxy statement/prospectus as amended or supplemented, including any joint proxy statement, is referred to herein as the "Proxy Statement") shall not, on the dates the Proxy Statement is first mailed to the Company's stockholders and at the time of the Company Stockholders' Meeting, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not false or misleading, or omit to state any material fact necessary to correct any statement in any earlier written communication with respect to the solicitation of proxies for the Company Stockholders' Meeting which has become false or misleading. The Proxy Statement utilized by the Company will comply as to form in all material respects with the provisions of the Exchange Act and the rules and regulations thereunder. If at any time prior to the Effective Time, any event relating to the Company or any of its affiliates, officers or directors should be discovered by the Company which is required to be set forth in an amendment to the Registration Statement or a supplement to the Proxy Statement, or which is required to be disclosed to the Company's stockholders so that the information made available to them in connection with electing the form of Merger Consideration is not false or misleading in any material respect, the Company shall promptly inform the Parent. Notwithstanding the foregoing, the Company makes no representation or warranty with respect to any information supplied by the Parent or Merger Sub that is contained in any of the foregoing documents. II.19. Fairness Opinion. The Company has received an opinion from Salomon Smith Barney Inc. dated as of the date hereof, to the effect that as of the date hereof, the consideration to be received by the Company's stockholders in the Merger is fair from a financial point of view and will deliver to the Parent a copy of such written opinion. II.20. Insurance. The Company and each of its Subsidiaries are, and have been continuously since January 1, 1994, insured for a minimum amount of $25,000,000 (subject to deductibles stated in such policies) against such risks and losses as are customary in all material respects for companies conducting the business as conducted by the Company and its Subsidiaries during such time period. Neither the Company nor any of its Subsidiaries has received any notice of cancellation or termination with respect to any insurance policy material to the Company and its Subsidiaries, taken as a whole. The insurance policies material to the Company and its Subsidiaries are, taken as a whole, to the Company's knowledge, valid and enforceable policies in all material respects. II.21. Year 2000. The Company Disclosure Schedule identifies each "Year 2000" audit, report or investigation that has been performed by or on behalf of the Company with respect to its business and operations. Except as set forth in such audits, reports and investigations, (i) the Company has not been informed by any customer, vendor or service provider with which the Company or any of its Subsidiaries transacts business of an inability on the part of such third party to be Year 2000 Compliant and (ii) to the knowledge of the Company, there is and will be no failure of the Company's computer hardware or software systems to be Year 2000 Compliant, which inability or failure is reasonably likely to have a Company Material Adverse Effect. For purposes of this Agreement, "Year 2000 Compliant" means, with respect to each system referred to in the prior sentence that is intended to perform date-related functions, that such system, when used properly in accordance with its documentation, is capable of correctly receiving, processing and providing date data before, on, between and after December 31, 1999 and January 1, 2000; provided that all applications, hardware and other systems used in conjunction with such system correctly exchange data with or provided data to such system. II.22. Commodity Derivatives and Credit Exposure Matters. The Company has provided the Parent copies of the Company's and its Subsidiaries' natural gas and propane price risk management policies listed in Schedule 2.22 of the Company Disclosure Schedules. At all times since March 31, 1999, the Company and its Subsidiaries taken as a whole have been in material compliance with such policies, and no failure to comply with such policies by the Company and its Subsidiaries taken as a whole has resulted in a Company Material Adverse Effect. III. REPRESENTATIONS AND WARRANTIES OF THE PARENT The Parent represents and warrants to the Company, subject to the exceptions set forth in the disclosure schedule supplied by the Parent to the Company (the "Parent Disclosure Schedule"), as follows: III.1. Organization of the Parent. The Parent and each of its Subsidiaries is a corporation or other legal entity duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation or organization, has the requisite corporate or similar power to own, lease and operate its property and to carry on its business as now being conducted and as proposed to be conducted, and is duly qualified to do business and in good standing as a foreign corporation or other legal entity in each jurisdiction in which the failure to be so qualified would have a Parent Material Adverse Effect (as defined below). The Parent has delivered or made available a true and correct copy of the Declaration of Trust and Bylaws of the Parent, each as amended to date, to the Company. The term "Parent Material Adverse Effect" means, for purposes of this Agreement, any change, event or effect that is materially adverse to the business, assets (including intangible assets), prospects, financial condition or results of operations of the Parent and its Subsidiaries taken as a whole (other than changes that are the effect of economic factors (other than interest rate changes) affecting the economy as a whole or changes that are the effect of factors generally affecting the specific markets in which the Parent and its Subsidiaries compete); provided, however, that a Parent Material Adverse Effect shall not include any adverse effect primarily attributable to the Merger or the announcement thereof or the transactions contemplated by this Agreement (other than effects arising out of or resulting from actions by any state or federal regulatory authority with respect to this Agreement and the transactions contemplated hereby).. III.2. The Parent Capital Structure. The authorized capital stock of the Parent consists of 50,000,000 shares of Common Stock, $1.00 par value, of which there were 22,638,996 shares issued and outstanding as of June 30, 1999. As of the date hereof, except for an aggregate of 1,142.410 shares of Parent Common Stock reserved for issuance under various stock option and other stock plans of the Parent, there is no outstanding right, subscription, warrant, call, preemptive right, option or other agreement of any kind to purchase or otherwise to receive from the Parent any shares of the capital stock or any other security of the Parent and there is no outstanding security of any kind convertible into or exchangeable for such capital stock. Since March 31, 1999, no shares of Parent Common Stock have been issued except pursuant to the stock option and other stock plans of the Parent. All outstanding shares of Parent Common Stock are duly authorized, validly issued, and fully paid and non-assessable and are not subject to preemptive rights created by statute, the Declaration of Trust or Bylaws of the Parent or any agreement or document to which the Parent is a party or by which it is bound. All of the shares of Parent Common Stock to be issued in the Merger will be, when issued in accordance with this Agreement, duly authorized, validly issued, fully paid and nonassessable. III.3. Merger Sub. (a) Merger Sub is duly organized, validly existing and in good standing as a New Hampshire corporation, with the requisite corporate power to own, lease and operate the property and carry on the business as now being conducted by the Company. (b) All of the capital stock of Merger Sub has been duly authorized, and is validly issued, fully paid and nonassessable and owned of record and beneficially by the Parent. (c) Merger Sub has been formed solely for the purpose of engaging in the transactions contemplated by this Agreement and has not engaged in any other business activities. III.4. Authority. (a) The Parent and Merger Sub have all requisite corporate power and authority to enter into this Agreement and to consummate the transactions contemplated hereby. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of the Parent and Merger Sub, respectively. This Agreement has been duly executed and delivered by the Parent and Merger Sub, respectively, and, assuming the due authorization, execution and delivery of this Agreement by the Company, this Agreement constitutes and will constitute the valid and binding obligation of the Parent and Merger Sub, respectively, enforceable in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general principles of equity. The execution and delivery of this Agreement by the Parent and Merger Sub do not, and the performance of this Agreement by the Parent and Merger Sub will not, (i) conflict with or violate the charter or bylaws of the Parent or Merger Sub, (ii) subject to obtaining the approval of the NHPUC in accordance with New Hampshire law and compliance with the other requirements set forth in Section 3.4(b) below, conflict with or violate any law, rule, regulation, order, judgment or decree applicable to the Parent or any of its Subsidiaries or by which its or any of their respective properties is bound or affected, or (iii) subject to obtaining the third party consents referred to in the final sentence of this Section 3.4(a), result in any breach of or constitute a default (or an event that with notice or lapse of time or both would become a default) under, or impair the Parent's rights or alter the rights or obligation of any third party under, or give to others any rights of termination, amendment, acceleration or cancellation of, or result in the creation of a lien or encumbrance on any of the properties or assets of the Parent or any of its Subsidiaries pursuant to, any note, bond, mortgage, indenture, contract, agreement, lease, license, permit, franchise or other instrument or obligation to which the Parent or any of its Subsidiaries is a party or by which the Parent or any of its Subsidiaries or its or any of their respective properties are bound or affected, except, with respect to clauses (ii) and (iii), for any such conflicts, violations, defaults or other occurrences that would not have a Parent Material Adverse Effect. The Parent Disclosure Schedule lists all consents, waivers and approvals under any of the Parent's or any of its Subsidiaries' agreements, contracts, licenses or leases required to be obtained in connection with the consummation of the transactions contemplated hereby, except for those the absence of which would not have a Parent Material Adverse Effect. (b) No consent, approval, order or authorization of, or registration, declaration or filing with any Governmental Entity is required by or with respect to the Parent or Merger Sub in connection with the execution and delivery of this Agreement or the consummation of the transactions contemplated hereby, except for (i) the filing and effectiveness of the Registration Statement with the SEC in accordance with the Securities Act, (ii) the filing of the Articles of Merger with the Secretary of State of New Hampshire, (iii) the filing of a Current Report on Form 8-K with the SEC, (iv) the filing with the Antitrust Division and the FTC of such forms as may be required by the HSR Act and the termination or expiration of all applicable waiting periods thereunder, (v) the listing of Parent Common Stock issuable pursuant to Section 1.6 on the NYSE, the Pacific Exchange and the Boston Stock Exchange, (vi) the approval of the Merger, the related transactions contemplated hereunder by the NHPUC and any required filing thereof with the Secretary of State of New Hampshire; (vii) the approval of the Merger by the SEC pursuant to PUHCA; (viii) such consents, approvals, orders, authorizations, registrations, declarations and filings as may be required under applicable federal and state securities laws and the laws of any foreign country; and (ix) such other consents, authorizations, filings, approvals and registrations that, if not obtained or made, would not have a Parent Material Adverse Effect or a material adverse effect on the ability of the Parent to consummate the Merger. III.5. SEC Filings; the Parent Financial Statements. (a) Each of the Parent and each of its Subsidiaries has filed all forms, reports and documents required to be filed by it with the SEC since January 1, 1996. All such required forms, reports and documents (including those that the Parent or its Subsidiaries may file after the date hereof until the Closing) are referred to herein as the "Parent SEC Reports." As of their respective dates, the Parent SEC Reports (i) were or will be prepared in compliance in all material respects with the requirements of the Securities Act or the Exchange Act, as the case may be, and the rules and regulations of the SEC thereunder applicable to such Parent SEC Reports, and (ii) did not and will not at the time they were or are filed (or if amended or superseded by a filing prior to the date of this Agreement, then on the date of such filing) contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. (b) Each of the consolidated financial statements (including, in each case, any related notes thereto) contained in the Parent SEC Reports (the "Parent Financials"), including any Parent SEC Reports filed after the date hereof until the Closing, (i) complied or will comply as to form in all material respects with the published rules and regulations of the SEC with respect thereto, (ii) was or will be prepared in accordance with GAAP applied on a consistent basis throughout the periods involved (except as may be indicated in the notes thereto or, in the case of unaudited interim financial statements, as may be permitted by the SEC on Form 10-Q under the Exchange Act) and (iii) fairly presented or will fairly present, in all material respects, the consolidated financial position of the Parent and its Subsidiaries as at the respective dates thereof and the consolidated results of its operations and cash flows for the periods indicated, except that the unaudited interim financial statements were or are subject to normal and recurring year-end adjustments which were not, or are not expected to be, material in amount. The balance sheet of the Parent contained in the Parent SEC Reports as of March 31, 1999 is hereinafter referred to as the "Parent Balance Sheet." Except as disclosed in the Parent Disclosure Schedule and except for obligations under this Agreement, neither the Parent nor any of its Subsidiaries has any liabilities (absolute, accrued, contingent or otherwise) of a nature required to be disclosed on a balance sheet or in the related notes to the consolidated financial statements prepared in accordance with GAAP that are, individually or in the aggregate, material to the business, results of operations or financial condition of the Parent and its Subsidiaries taken as a whole, except liabilities (i) provided for in the Parent Balance Sheet or the related notes , (ii) incurred since the date of the Parent Balance Sheet in the ordinary course of business consistent with past practices, or (iii) incurred in connection with the transactions contemplated hereby. III.6. Absence of Certain Changes and Events. Since March 31, 1999, there has not occurred, and no fact or condition exists which would have or, insofar as reasonably can be foreseen, could have any Parent Material Adverse Effect and there has not been, occurred or arisen any: (a) material damage, destruction, or loss to the business or properties of the Parent and its Subsidiaries taken as a whole (whether or not covered by insurance); (b) declaration, setting aside, or payment of any dividend or other distribution in respect of the Parent's capital stock (other than regular quarterly dividends in accordance with past practice); or (c) change in the capital stock or in the number of shares or classes of the Parent's authorized capital stock as described in Section 3.2. III.7. Litigation. There is no action, suit, proceeding or investigation pending or to the Parent's knowledge, threatened against the Parent or any of its Subsidiaries that would have a Parent Material Adverse Effect or that in any manner challenges or seeks to prevent, enjoin, alter or delay any of the transactions contemplated by this Agreement. III.8. Registration Statement; Proxy Statement/Prospectus. The information supplied by the Parent for inclusion in the Registration Statement (as defined in Section 2.18) shall not at the time the Registration Statement is filed with the SEC and at the time it becomes effective under the Securities Act, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. The information supplied by the Parent for inclusion in the Proxy Statement to be sent to the stockholders of the Company in connection with the Company Stockholders' Meeting, and the information made available to the Company's stockholders in connection with their election as to the form of Merger Consideration, shall not, on the date the Proxy Statement is first mailed to the Company's stockholders and at the time of the Company Stockholders' Meeting, as the case may be, and at the time such information is made available to the Company's stockholders in connection with such election, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not false or misleading, or omit to state any material fact necessary to correct any statement in any earlier written communication with respect to the solicitation of proxies for the Company Stockholders' Meeting which has become false or misleading. The Registration Statement and the Proxy Statement used by the Parent will comply as to form in all material respects with applicable provisions of the Securities Act and the Exchange Act, respectively, and the rules and regulations thereunder. If at any time prior to the Effective Time, any event relating to the Parent or any of its affiliates, officers or directors should be discovered by the Parent that should be set forth in an amendment to the Registration Statement or a supplement to the Proxy Statement or as part of the information made available to the Company's stockholders so that the information made available to them in connection with electing the form of Merger Consideration is not false or misleading in any material respect, the Parent shall promptly inform the Company. Notwithstanding the foregoing, the Parent makes no representation or warranty with respect to any information supplied by the Company that is contained in any of the foregoing documents. III.9. Compliance; Permits; Restrictions. (a) Neither the Parent nor any of its Subsidiaries is in conflict with, or in default or violation of, (i) any law, rule, regulation, order, judgment or decree applicable to the Parent or any of its Subsidiaries or by which its or any of their respective properties is bound or affected, or (ii) any note, bond, mortgage, indenture, contract, agreement, lease, license, permit, franchise or other instrument or obligation to which the Company or any of its Subsidiaries is a party or by which the Parent or any of its Subsidiaries or its or any of their respective properties is bound or affected, except for any conflicts, defaults or violations that would not have a Parent Material Adverse Effect. (b) The Parent and its Subsidiaries hold all consents, permits, licenses, variances, exemptions, orders and approvals from governmental authorities that are material to the operation of the business of the Parent and its Subsidiaries taken as a whole (collectively, the "Parent Permits"). The Parent and its Subsidiaries are in compliance with the terms of the Parent Permits, except where the failure to so comply would not have a Parent Material Adverse Effect. III.10. Regulation as a Utility. As of the date of this Agreement, the Parent is a holding company exempt from registration under Section 3(a)(1) of the PUHCA. III.11. Ownership of the Company Common Stock. As of the date of this Agreement, the Parent does not "beneficially own" (as such term is defined for purposes of Section 13(d) of the Exchange Act) any shares of Company Common Stock. III.12. Environmental Matters. (a) Except as would not have a Parent Material Adverse Effect, no amount of any Hazardous Material is present as a result of the actions of the Parent or any of its Subsidiaries in, on or under any property, including the land and the improvements, ground water and surface water thereof, that the Parent or any of its Subsidiaries has at any time owned, operated, occupied or leased, and the Company is not aware that any Hazardous Materials are present in, on or under such property as a result of the conduct of other parties. To the knowledge of the Parent, the Parent Disclosure Schedule lists all locations that the Parent or any Subsidiary formerly owned or leased where Hazardous Materials are present in a volume or concentration that would reasonably be expected to have a Parent Material Adverse Effect. (b) Except as would not have a Parent Material Adverse Effect, (i) neither the Parent nor any of its Subsidiaries has generated, transported, stored, used, manufactured, disposed of, released or exposed its employees or others to Hazardous Materials in violation of, or in a manner which could give rise to liabilities under, any law in effect prior to or as of the date hereof, nor (ii) has the Parent or any of its Subsidiaries engaged in Hazardous Materials Activities in violation of any rule, regulation, treaty or statute promulgated by any Governmental Entity in effect prior to or as of the date hereof to prohibit, regulate or control Hazardous Materials or any Hazardous Material Activity. (c) The Parent and its Subsidiaries currently hold all environmental approvals, permits, licenses, clearances and consents ("Parent Environmental Permits") necessary for the conduct of the Parent's and its Subsidiaries' Hazardous Material Activities and other businesses of the Parent and its Subsidiaries, taken as a whole, as such activities and businesses are currently being conducted, except where the failure to so hold would not have a Parent Material Adverse Effect. (d) No actions, proceedings, revocation proceeding, amendment procedure, writ, injunction or claim is pending, or to the Parent's knowledge, threatened concerning any Parent Environmental Permit, Hazardous Material in, and or under any property owned or leased at any time by the Parent or any of its Subsidiaries or any Hazardous Materials Activity of the Parent or any of its Subsidiaries, in which injunction or other equitable relief or damages in excess of $1,000,000 is or is reasonably likely to be sought against the Parent or any Subsidiary or that otherwise would have a Parent Material Adverse Effect. IV. CONDUCT PRIOR TO THE EFFECTIVE TIME IV.1. Conduct of Business by the Company and the Parent. During the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement or the Effective Time, the Company (which for the purposes of this Article 4 shall include the Company and each of its Subsidiaries) and the Parent (which for the purposes of this Article 4 shall include the Parent and each of its Subsidiaries) agree, except (i) in the case of the Company as provided in Article 4 of the Company Disclosure Schedule, (ii) in the case of the Parent (x) as provided in Article 4 of the Parent Disclosure Schedule or (y) as would not have a material adverse effect on the ability of the Parent to consummate the Merger or materially delay the Effective Date, (iii) as otherwise contemplated by this Agreement, or (iv) to the extent that the other party shall otherwise consent in writing, to carry on its business in the usual, regular and ordinary course, in substantially the same manner as heretofore conducted and use its commercially reasonable efforts consistent with past practices and policies to preserve intact its present business organization, keep available the services of its present officers and employees, maintain its properties and assets, in the aggregate, in good condition and repair, normal wear and tear excepted, and preserve its relationships with customers, suppliers, distributors, and others with which it has business dealings. IV.2. Certain Actions by the Company. In addition, except as is set forth in Article 4 of the Company Disclosure Schedules notwithstanding Section 4.1 above, without the prior written consent of the Parent, which consent will not be unreasonably withheld or delayed, the Company shall not do any of the following, nor shall the Company permit its Subsidiaries to do any of the following: (a) Enter into any partnership arrangements, joint development agreements or strategic alliances; (b) Grant any severance or termination pay to any officer or employee except payments pursuant to written agreements outstanding, or policies existing, on the date hereof and as previously disclosed in writing to the Parent, or adopt any new severance plan; (c) Make any filings with any government authority regarding its rates or charges, standards of service, accounting matters or services it provides, except in the ordinary course of business consistent with past practices or as required by law; (d) Declare or pay any dividends on or make any other distributions (whether in cash, stock or property) in respect of any capital stock or split, combine or reclassify any capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for any capital stock, other than the declaration and payment of regular quarterly cash dividends on the Company Common Stock with record and payment dates consistent with past practice and at rates not in excess, in any fiscal year, of the dividends for the prior fiscal year increased at a rate consistent with past practice, and dividends payable by a Subsidiary to the Company, other than a dividend or distribution in connection with the adoption of a replacement shareholders rights plan or in connection with any redemption under the Rights Plan; (e) Repurchase or otherwise acquire, directly or indirectly, any shares of capital stock; (f) Issue, deliver, sell, authorize or propose the issuance, delivery or sale of, any shares of Company capital stock or any securities convertible into shares of Company capital stock, or subscriptions, rights, warrants or options to acquire any shares of Company capital stock or any securities convertible into shares of Company capital stock, or enter into other agreements or commitments of any character obligating it to issue any such shares or convertible securities, other than pursuant to the Company Plans consistent with past practice; (g) Cause, permit or propose any amendments to its Articles of Incorporation or Bylaws, except as contemplated by this Agreement and in connection with adopting a new shareholder rights plan; (h) Acquire or agree to acquire by merging or consolidating with, or by purchasing any equity interest (other than money market accounts and other short-term investments) in or a material portion of the assets of, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof, or otherwise acquire or agree to acquire any material amount of operating assets; (i) Sell, lease, encumber or otherwise dispose of any properties or assets that are material, individually or in the aggregate, to the business of the Company, except for easements granted in the ordinary course of business; (j) Incur any indebtedness for borrowed money or guarantee any such indebtedness (or enter any other guarantee, keep-well, capital maintenance or other similar agreement) or issue or sell any debt securities or warrants or rights to acquire debt securities of the Company or guarantee any debt securities of others; (k) Adopt or amend any employee benefit or stock purchase or option plan, or enter into any employment contract, pay any special bonus or special remuneration to any director, officer or employee other than pursuant to existing agreements, plans and arrangements identified in the Company Disclosure Schedule, or increase the salaries or wage rates, other than in the ordinary course of business and consistent in timing and amount with past practice or as required by law, of its officers or employees; (l) Pay, discharge or satisfy any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than payment, discharge or satisfaction in the ordinary course of business or in an amount, in any individual case, of less than $150,000, other than any payments made under any of the contracts, agreements or binding commitments listed in the Company Disclosure Schedule, in accordance with their respective terms; (m) Make any individual capital expenditure or commitment, or series of related capital expenditures or commitments, outside the ordinary course of business, exceeding $150,000; (n) Take any action that would cause the transactions contemplated by this Agreement to be subject to requirements imposed by any Takeover Law or fail to take all necessary steps within its control to exempt (or ensure the exemption of) the transactions contemplated by this Agreement from any applicable Takeover Law, including NH RSA 421-A; or (o) Agree in writing or otherwise to take any of the actions described in this Section. V. ADDITIONAL AGREEMENTS V.1. Proxy Statement/Prospectus; Registration Statement; Other Filings. As promptly as practicable after the execution of this Agreement, the Company will prepare and file with the SEC the Proxy Statement, and the Parent will prepare and file with the SEC the Registration Statement in which the Proxy Statement will be included as a prospectus. Each of the Company and the Parent will respond to any comments of the SEC and will use its best efforts to have the Registration Statement declared effective under the Securities Act as promptly as practicable after such filing. The Company will cause the Proxy Statement to be mailed to its stockholders at the earliest practicable time. As promptly as practicable after the date of this Agreement, the Company and the Parent will prepare and file any other filings required under the Exchange Act, the Securities Act or any other Federal, foreign or state securities laws relating to the Merger and the transactions contemplated by this Agreement (the "Other Filings"). Each party will notify the other party promptly upon the receipt of any comments from the SEC or its staff and of any request by the SEC or its staff or any other government officials for amendments or supplements to the Registration Statement, the Proxy Statement or any Other Filing or for additional information and will supply the other party with copies of all correspondence between such party or any of its representatives, on the one hand, and the SEC or its staff or any other government officials, on the other hand, with respect to the Registration Statement, the Proxy Statement, the Merger or any Other Filing. From and after the date of this Agreement until the Effective Time, the Parent and the Company shall file with the SEC when due all reports required to be filed pursuant to Section 13 or 15(d) of the Exchange Act, and the Parent shall make available to the Company's stockholders such information as may be required in connection with their election as to the form of Merger Consideration. Whenever any event occurs that is required to be set forth in an amendment or supplement to the Proxy Statement, the Registration Statement or any Other Filing or to be made available to the Company's stockholders in connection with such election, the Company or the Parent, as the case may be, will promptly inform the other party of such occurrence and cooperate in filing with the SEC or its staff or any other government officials, and/or mailing to stockholders of the Company, such amendment, supplement or information. The Proxy Statement will also include the recommendations of the Board of Directors of the Company in favor of approval of this Agreement (except that the Board of the Company may withdraw, modify or refrain from making such recommendation to the extent that the Board determines in good faith, after consulting with outside legal counsel, that the Board's fiduciary duties under applicable law require it to do so). V.2. Meetings of Stockholders. The Company will take all action necessary in accordance with applicable New Hampshire law and its Articles of Incorporation and Bylaws to convene the Company Stockholders' Meeting to be held as promptly as practicable, and in any event within 60 days after the declaration of effectiveness of the Registration Statement , and in any event will use all commercially reasonable efforts to convene the Company Stockholders' Meeting prior to December 31, 1999, for the purpose of considering the approval of this Agreement. Unless otherwise required by the fiduciary duties of the Company's Board of Directors, the Company will use its best efforts to solicit from its stockholders proxies in favor of the approval of this Agreement, and will take all other action necessary or advisable to secure the vote or consent of its stockholders required to obtain such approval. V.3. Access to Information; Confidentiality. (a) Each party will afford the other party and its accountants, counsel and other representatives reasonable access during normal business hours to the properties, books, records and personnel of the other party during the period prior to the Effective Time to obtain all information concerning the business, including properties, results of operations and personnel of such party, as the other party may reasonably request. No information or knowledge obtained in any investigation pursuant to this Section 5.3 will affect or be deemed to modify or waive any representation or warranty contained herein or the conditions to the obligations of the parties to consummate the Merger. (b) The parties acknowledge that the Company and the Parent have previously executed Confidentiality Agreements dated June 9 and June 11, 1999 (the "Confidentiality Agreements"), which Confidentiality Agreements will continue in full force and effect in accordance with its terms, except as is necessary to comply with the terms of this Agreement. V.4. No Solicitation. (a) From and after the date of this Agreement until the earlier of the Effective Time or termination of this Agreement, the Company and its Subsidiaries will not, and will instruct their respective directors, officers, employees, representatives, investment bankers, agents and affiliates not to, directly or indirectly, (i) solicit or encourage or facilitate submission of, any proposals or offers (or anything that is reasonably likely to lead to a proposal or offer) by any person, entity or group (other than the Parent and its affiliates, agents and representatives), or (ii) participate in any discussions or negotiations with, or disclose any non-public information concerning the Company or any of its Subsidiaries to, or afford any access to the properties, books or records of the Company or any of its Subsidiaries to, or otherwise assist or facilitate, or enter into any agreement or understanding with, any person, entity or group (other than the Parent and its affiliates, agents and representatives), in connection with any Acquisition Proposal, or that constitute or may reasonably be expected to lead to an Acquisition Proposal, with respect to the Company. For the purposes of this Agreement, an "Acquisition Proposal" means (x) any proposal or offer relating to (i) any merger, consolidation, sale of substantial assets of the Company or similar transactions involving the Company or any Subsidiary (other than sales of assets or inventory in the ordinary course of business or permitted under the terms of this Agreement), (ii) sale of 20% or more of the outstanding shares of capital stock of the Company (including without limitation by way of a tender offer or an exchange offer), or (iii) the acquisition by any person of beneficial ownership or a right to acquire beneficial ownership of, or the formation of any "group" (as defined under Section 13(d) of the Exchange Act and the rules and regulations thereunder) that beneficially owns, or has the right to acquire beneficial ownership of, 20% or more of the then outstanding shares of capital stock of the Company (except for acquisitions for passive investment purposes only in circumstances where the person or group qualifies for and files a Schedule 13G with respect thereto); or (y) any public announcement of a proposal, plan or intention to do any of the foregoing or any agreement to engage in any of the foregoing. The Company will immediately cease any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing and will use reasonable efforts to obtain the return of any confidential information furnished to any such parties. The Company will (i) notify the Parent promptly if any inquiry or proposal is made or any information or access is requested in connection with an Acquisition Proposal or potential Acquisition Proposal and (ii) notify the Parent within one business day of the receipt thereof of the identity of the person making the Acquisition Proposal and the applicable terms and conditions of such Acquisition Proposal and of any modification thereof or any proposed agreement. In addition, subject to the other provisions of this Section 5.4, from and after the date of this Agreement until the earlier of the Effective Time and termination of this Agreement, the Company and its Subsidiaries will not, and will instruct their respective directors, officers, employees, representatives, investment bankers, agents and affiliates not to, directly or indirectly, make or authorize any public statement, recommendation or solicitation in support of any Acquisition Proposal made by any person, entity or group (other than the Parent); provided, however, that nothing herein shall prohibit the Company's Board of Directors from taking and disclosing to the Company's stockholders a position with respect to a tender offer pursuant to Rules 14d-9 and 14e-2 promulgated under the Exchange Act or any other disclosure required by law. (b) Notwithstanding the provisions of paragraph (a) above but subject to compliance with the notification requirements thereof, the Company may, to the extent the Board of Directors of the Company determines, in good faith, after consultation with its outside legal counsel and financial advisors, that the Board's fiduciary duties under applicable law require it to do so, participate in discussions or negotiations with, and, subject to the requirements of paragraph (c) below, furnish information to any person, entity or group after such person, entity or group has delivered to the Company in writing an Acquisition Proposal that the Board of Directors of the Company determines in good faith, (i) would result in a transaction more favorable to the stockholders of the Company than the Merger and (ii) has been made by a person, entity or group that is financially capable of consummating the Acquisition Proposal. In addition, notwithstanding the provisions of paragraph (a) above, in connection with a possible Acquisition Proposal, the Company shall refer any third party to this Section 5.4 or make a copy of this Section 5.4 available to a third party. In the event the Company receives an Acquisition Proposal, nothing contained in this Agreement (but subject to the terms hereof) will prevent the Board of Directors of the Company from approving such Acquisition Proposal, or recommending such Acquisition Proposal to the Company's stockholders, if the Board determines in good faith, after consultation with its outside legal counsel and financial advisors, that such action is required by its fiduciary duties under applicable law; in such case, the Board of Directors of the Company may withdraw, modify or refrain from making its recommendation concerning the approval of this Agreement, provided that the Company provides Parent with at least three business days' prior notice thereof, during which time the Parent may make, and in such event the Company shall consider, a counterproposal to such Acquisition Proposal, and shall itself and shall cause its financial and legal advisors to negotiate on its behalf with the Parent with respect to the terms and conditions of such counterproposal. Nothing in this Section 5.4 shall (x) permit the Company to terminate this Agreement (except as specifically provided in Section 7.1 hereof), (y) permit the Company to enter into any agreement with respect to an Acquisition Proposal during the term of this Agreement (it being agreed that during the term of this Agreement, the Company shall not enter into any agreement with any person that provides for, or in any way facilitates, an Acquisition Proposal (other than a confidentiality agreement of the type referred to below)) or (z) affect any other obligation of the Company under this Agreement. (c) Notwithstanding anything to the contrary in this Section 5.4, the Company will not provide any non-public information to a third party unless (i) the Company provides such non-public information pursuant to a nondisclosure agreement with terms comparable to the terms in the Confidentiality Agreement dated June 9, 1999 protecting confidential information of the Company and (ii) such non-public information has previously been delivered or made available to the Parent. V.5. Public Disclosure. The Parent will consult with the Company, and the Company will consult the Parent, and each will get the approval of the other (which will not be unreasonably withheld or delayed), before issuing any press release or otherwise making any public statement with respect to the Merger or this Agreement and will not issue any such press release or make any such public statement prior to such consultation and approval, except as may be required by law or any listing agreement with or rule of a national securities exchange. V.6. Legal Requirements. (a) Each of the Parent, Merger Sub and the Company will take all reasonable actions necessary or desirable to comply promptly with all legal requirements that may be imposed on them with respect to the consummation of the transactions contemplated by this Agreement (including furnishing all information required in connection with approvals of or filings with any Governmental Entity) and will promptly cooperate with and furnish information to any party hereto necessary in connection with any such requirements imposed upon any of them or their respective Subsidiaries in connection with the consummation of the transactions contemplated by this Agreement. The Parent will use its commercially reasonable efforts to take such steps as may be necessary to comply with the securities and blue sky laws of all jurisdictions which are applicable to the issuance of Parent Common Stock pursuant hereto. The Company will use its commercially reasonable efforts to assist the Parent as may be necessary to comply with the securities and blue sky laws of all jurisdictions that are applicable in connection with the issuance of Parent Common Stock pursuant hereto. (b) As soon as practicable after execution of this Agreement or as otherwise mutually agreed by the parties, each of the Parent and the Company shall file with the Antitrust Division and the FTC a premerger notification form and any supplemental information (other than privileged information) which may be requested in connection therewith pursuant to the HSR Act, which filings and supplemental information will comply in all material respects with the requirements of the HSR Act. Each of the Parent and the Company shall cooperate fully with the other in connection with the preparation of such filings and shall use its best efforts to respond to any requests for supplemental information from the Antitrust Division or the FTC and to obtain early termination of any waiting period applicable to the Merger under the HSR Act without any materially burdensome conditions or any divestiture. Filing fees required to be paid in connection with the premerger notification pursuant to the HSR Act shall be borne and paid by the Parent. (c) As soon as practicable after execution of this Agreement, to the extent applicable, the Parent shall file with the SEC an application for approval under Section 9(a)(2) of PUHCA and such other applications and information (other than privileged information) which may be requested by the SEC in connection therewith pursuant to PUHCA and the rules of the SEC thereunder, which filings and information will comply in all material respects with the requirements of PUHCA and such rules. The Parent will diligently prosecute such applications and, subject to the understanding set forth in clause (ii) of Section 6.1(d) below, take such actions as may reasonably be necessary to obtain the requisite SEC approval under PUHCA. V.7. Third Party Consents. As soon as practicable following the date hereof, each of the Company and the Parent will use its commercially reasonable efforts to obtain all material consents, waivers and approvals under any of its or its Subsidiaries' agreements, contracts, licenses, leases or franchises required to be obtained in connection with the consummation of the transactions contemplated hereby, it being understood that neither Company nor Parent shall be required to make materially burdensome payments in connection with fulfillment of its obligations under this Section 5.7. V.8. Notification of Certain Matters. The Parent will give prompt notice to the Company, and the Company will give prompt notice to the Parent, of the occurrence, or failure to occur, of any event, which occurrence or failure to occur would be reasonably likely to cause (a) any representation or warranty contained in this Agreement to be untrue or inaccurate in any material respect at any time from the date of this Agreement to the Effective Time, or (b) any material failure of the Parent and Merger Sub or the Company, as the case may be, or of any officer, director, employee or agent thereof, to comply with or satisfy any covenant, condition or agreement to be complied with or satisfied by it under this Agreement. Notwithstanding the above, the delivery of any notice pursuant to this section will not limit or otherwise affect the remedies available hereunder to the party receiving such notice or the conditions to such party's obligation to consummate the Merger. V.9. Best Efforts and Further Assurances. Subject to the respective rights and obligations of the Parent and the Company under this Agreement, each of the parties to this Agreement will and the Parent will cause Merger Sub to, use its best efforts to effectuate the Merger and the other transactions contemplated hereby and to fulfill and cause to be fulfilled the conditions to closing under this Agreement. Each party hereto, at the reasonable request of another party hereto, will, and the Parent will cause Merger Sub to, execute and deliver such other instruments and do and perform such other acts and things as may be necessary or desirable for effecting completely the consummation of the transactions contemplated hereby. Notwithstanding the foregoing, nothing in this Agreement shall require the Parent to agree to any materially burdensome condition or any divestiture in order to obtain any clearance for the Merger under the HSR Act or in connection with any other regulatory order or approval. V.10. Certain Employee Agreements. Parent and the Surviving Corporation and its Subsidiaries shall honor in accordance with their terms all contracts, agreements, collective bargaining agreements and commitments of the Company and its Subsidiaries prior to the date hereof which apply to any current or former employee or current or former director of the Company and which are disclosed in the Company Disclosure Schedule; provided, however, that the foregoing shall not prevent Parent or the Surviving Corporation from administering and enforcing such contracts, agreements, collective bargaining agreements and commitments in accordance with their terms, including without limitation, any reserved right to amend, modify, suspend, revoke or terminate any such contract, agreement, collective bargaining agreement or commitment. It is the present intention of Parent and the Company that following the Effective Time, if any reductions in workforce in respect of employees of the Company or any of its Subsidiaries become necessary they shall be made on a fair and equitable basis, in light of the circumstances and the objectives to be achieved, giving consideration to previous work history, job experience, and qualifications, without regard to whether employment prior to the Effective Time was with the Company or its Subsidiaries or Parent or its Subsidiaries, and that any employees whose employment is terminated or jobs are eliminated by Parent, the Surviving Corporation or any of their respective Subsidiaries during such period shall be entitled to participate on a fair and equitable basis in the job opportunity and employment placement programs offered by Parent, the Surviving Corporation or any of their respective subsidiaries, subject in each case to the provisions of any labor agreements that may be applicable. Any workforce reductions carried out following the Effective Time by Parent or the Surviving Corporation and their respective subsidiaries shall be done in accordance with all applicable collective bargaining agreements, and all laws and regulations governing the employment relationship and termination thereof including, without limitation, the Worker Adjustment and Retraining Notification Act and regulations promulgated thereunder, to the extent applicable, and any comparable applicable state or local law. V.11. Corporate Offices. The corporate headquarters of the Surviving Corporation shall initially be located in Manchester, New Hampshire. V.12. Community Involvement. Subsequent to the Effective Time, Parent will, or will cause the Surviving Corporation to, continue to make charitable contributions to the communities served by the Company and its Subsidiaries and otherwise maintain a level of involvement in community activities in the State of New Hampshire at a level as generous as established practice carried on in recent years by the Company and its Subsidiaries. V.13. Advisory Board. Following the Effective Time, EnergyNorth Natural Gas, Inc. shall maintain an advisory board (the "Advisory Board") consisting of not less than five members and to be chaired by Mr. Giordano, for a period of at least three years following the Closing Date. Membership on the Advisory Board shall be offered to Mr. Giordano and all current members of the Company's Board of Directors who are residents of the State of New Hampshire and who are not employees of the Surviving Corporation and all such persons who join the Advisory Board shall be referred to as "Company Designees". Any vacancy on the Advisory Board which arises after the Effective Time (including any shortfall in Advisory Board membership arising from the failure of at least five eligible members of the Company's Board of Directors to elect to join the Advisory Board) shall be filled by Parent with the advice of the then remaining Company Designees (and such replacement person shall be deemed a "Company Designee" for all purposes hereunder). Meetings of the Advisory Board shall be called by EnergyNorth Natural Gas, Inc. and shall be held no less frequently than quarterly, and EnergyNorth Natural Gas, Inc. shall consult with the Advisory Board with respect to regulatory and legislative matters and community affairs of EnergyNorth Natural Gas, Inc. in EnergyNorth Natural Gas, Inc.'s current service area (including consultations with the Advisory Board in which the Advisory Board may review and make recommendations consistent with Section 5.12 with respect to the civic, charitable and business and customer development activities of EnergyNorth Natural Gas, Inc. in such area). Company Designees shall receive a fee of $1,500 per meeting attended for serving on the Advisory Board, and shall be reimbursed for reasonable out-of-pocket expenses incurred in connection with their service on the Advisory Board. The members of the Advisory Board shall be committed to the advancement of the affairs of the Surviving Corporation, EnergyNorth Natural Gas, Inc., and the Parent in the State of New Hampshire. The Surviving Corporation shall provide to Company Designees indemnification rights to the same extent as provided to Surviving Corporation's directors pursuant to the Surviving Corporation's Articles of Incorporation and bylaws. V.14. Representation on Parent Board. The Parent shall take such action as may be necessary to cause the number of Trustees comprising of the Parent's Board of Trustees at the Effective Time to be sufficient to permit one director of the Company to serve thereon and shall elect Edward T. Borer or another director of the Company designated by the Board of Directors of the Company who is reasonably satisfactory to the Parent. The Parent shall, as of the Effective Time, appoint such director to serve on the Parent's Board of Trustees for an initial term ending at the 2003 Annual Meeting of Shareholders of the Parent. V.15. Employee Benefit Matters. (a) For a period of 12 months after the Closing Date, and subject to applicable law, the Parent shall provide to continuing employees who were employees of the Company and its Subsidiaries immediately prior to the Effective Time (for purposes of this Section 5.15, "affected employees") benefits under welfare plans (as that term is defined in Section 3(1) of ERISA) and tax-qualified pension plans (as that term is defined in Section 3(2) of ERISA) that are substantially comparable in the aggregate to the welfare and tax-qualified pension benefits provided under the Company's Plans (as defined in Section 2.14), other than individual agreements, disclosed in the Company Disclosure Schedule as in effect on the Closing Date. Such employee benefits shall be made available to such employees without regard to preexisting condition limitations other than any such condition or limitation (including without limitation preexisting condition exclusions, waiting periods, actively-at-work requirements and other similar exclusions and conditions) as to which the relevant corresponding Plan of the Company or its Subsidiaries provided only a conditional waiver and as to which the employee (or his or her spouse or dependents) had not, as of the Closing Date, satisfied the relevant conditions for such waiver. For purposes of each employee benefits plan of the Parent or its Subsidiaries (a "Parent plan") that determines an individual's eligibility to become a participant in the Parent plan (an "eligibility requirement") or the extent of a participant's nonforfeitable right to benefits otherwise accrued under the Parent plan (a "vesting requirement") by reference to service for the Parent and its Subsidiaries, the Parent plan's eligibility and vesting requirements shall be applied to the extent permitted by law by taking into account for each affected employee such services of such employee for the Company or its subsidiaries prior to the Effective Time as would have been taken into account for purposes of the Parent's plan's eligibility and vesting requirements had such services been performed for the Parent and its Subsidiaries. The provisions of this Section 5.15 shall not apply to affected employees whose terms and conditions of employment are governed by a collective bargaining agreement. (b) The Company may establish a retention pool of up to a maximum of $650,000 in order to retain the services of certain officers and employees through and following the Effective Date. A listing of the individuals proposed to be covered and their respective retention amounts shall be provided by the Company to the Parent for its approval within 90 days following the date of this Agreement, such approval not to be unreasonably withheld. The amounts shall be payable to the individuals, as approved by the Parent pursuant to the immediately preceding sentence, 90 days following the Closing if such individuals have remained employed with the Surviving Corporation or its Subsidiaries through such date, except as set forth in Schedule 5.15(b) of the Parent Disclosure Schedules. V.16. Indemnification; D&O Insurance. (a) In the event of any threatened or actual claim, action, suit, proceeding or investigation, whether civil, criminal or administrative, including without limitation any such claim, action, suit, proceeding or investigation in which any person who is now, or has been at any time prior to the date of this Agreement, or who becomes prior to the Effective Time, a director or officer of the Company or any of its Subsidiaries (the "Indemnified Parties") is, or is threatened to be, made a party based in whole or in part on, or arising in whole or in part out of, or pertaining to (i) the fact that he is or was a director or officer of the Company, any of its Subsidiaries or any of their respective predecessors or (ii) this Agreement or any of the transactions contemplated hereby, whether in any case asserted or arising before or after the Effective Time, the parties hereto agree to cooperate and use their best efforts to defend against and respond thereto. It is understood and agreed that after the Effective Time, to the extent, if any, not provided by an existing right of indemnification or other agreement or policy, the Parent shall indemnify and hold harmless, as and to the fullest extent permitted by law and the charter and by-laws of the relevant entity, each such Indemnified Party against any losses, claims, damages, liabilities, costs, expenses (including reasonable attorney's fees and expenses in advance of the final disposition of any claim, suit, proceeding or investigation to each Indemnified Party to the fullest extent permitted by law upon receipt of any undertaking required by applicable law), judgments, fines and amounts paid in settlement in connection with any such threatened or actual claim, action, suit, proceeding or investigation. In the event of any such threatened or actual claim, action, suit, proceeding or investigation (whether asserted or arising before or after the Effective Time), the Indemnified Parties may retain counsel reasonably satisfactory to them after consultation with the Parent; provided, however, that (i) the Parent shall have the right to assume the defense thereof and upon such assumption the Parent shall not be liable to any Indemnified Party in connection with the defense thereof, except that if the Parent elects not to assume such defense or counsel for the Indemnified Parties reasonably advises the Indemnified Parties that there are issues which raise conflicts of interest between the Parent and the Indemnified Parties, the Indemnified Parties may retain counsel reasonably satisfactory to them after consultation with the Parent, and the Parent shall pay the reasonable fees and expenses of such counsel for the Indemnified Parties, (ii) the Parent shall be obligated pursuant to this paragraph to pay for only one counsel in any jurisdiction for all Indemnified Parties, (iii) the Parent shall not be liable for any settlement effected without its prior written consent (which consent shall not be unreasonably withheld) and (iv) the Parent shall have no obligation hereunder to any Indemnified Party when and if a court of competent jurisdiction shall ultimately determine, and such determination shall have become final and nonappealable, that indemnification of such Indemnified Party in the manner contemplated hereby is prohibited by applicable law. Any Indemnified Party wishing to claim indemnification under this Section 5.16 upon learning of any such claim, action, suit, proceeding or investigation shall notify the Parent thereof, provided that the failure to so notify shall not affect the obligations of the Parent under this Section 5.16 except to the extent such failure to notify materially prejudices the Parent. The Company's obligations under this Section 5.16(a) shall continue in full force and effect for a period of six (6) years from the Effective Time, provided, however, that all rights to indemnification in respect of any claim asserted or made within such period shall continue until the final disposition of such claim. (b) From and after the Effective Time, the Surviving Corporation will fulfill and honor in all respects the indemnification obligations of the Company pursuant to the provisions of the Articles of Incorporation and the Bylaws of the Company as in effect immediately prior to the Effective Time. (c) For a period of six (6) years after the Effective Time, the Parent shall cause the Surviving Corporation to maintain (to the extent available in the market) in effect a directors' and officers' liability insurance policy covering those persons who are currently covered by the Company's directors' and officers' liability insurance policy (a copy of which has been heretofore delivered to the Parent) with coverage in amount and scope at least as favorable as the Company's existing coverage (which coverage may be an endorsement extending the period in which claims may be made under such existing policy); provided that in no event shall the Parent or the Surviving Corporation be required to expend per year under this Section 5.16(c) more than an aggregate of 150% of the current annual premium expended by the Company to provide such coverage; and, further provided that if the premium for such coverage exceeds such amount, the Parent or the Surviving Corporation shall purchase a policy with the greatest coverage available for such 150% of the current annual premium. (d) In the event the Parent or any of its successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its assets to any person, then, and in each such case, to the extent necessary, proper provision shall be made so that the successors and assigns of the Parent assume the obligations set forth in this Section 5.16. (e) The provisions of this Section 5.16 are intended to be for the benefit of, and shall be enforceable by, each Indemnified Party and his or her heirs and representatives, and nothing herein shall affect any indemnification rights that any Indemnified Party and his or her heirs and representatives may have under the Bylaws of the Company or any of its Subsidiaries, any contract or applicable law. V.17. Tax-Free Reorganization. The Parent and the Company will each use its best efforts to cause the Merger to be treated as a reorganization within the meaning of Section 368 of the Code, and neither party will take any action that would cause the Merger to fail to qualify as a reorganization within the meaning of Section 368(a) of the Code. Each of the parties shall report the Merger for income tax purposes as a reorganization within the meaning of Section 368(a) of the Code (and any comparable state or local tax statute). The Parent and the Company will each make available to the other party and their respective legal counsel copies of all tax returns as may be requested by the other party. Each of the Parent and the Company will make and will use its best efforts to obtain from its affiliates such reasonable representations as may be requested by legal counsel for the purpose of rendering the opinions contemplated by Section 6.1(f). V.18. Listing. The Parent shall use its best efforts to cause the shares of Parent Common Stock to be issued in the Merger to be approved for listing on the NYSE, the Pacific Exchange and the Boston Stock Exchange prior to the Effective Time. V.19. Dividend Record Date. The Company agrees to coordinate with the Parent in establishing the record date for the payment of any dividends on the Company Common Stock in order to assure that the holders of record of Company Common Stock (i) are entitled to receive a dividend on either Company Common Stock or Parent Common Stock received in the Merger in the quarter in which the Closing occurs, and (ii) are not entitled to receive a dividend on both Company Common Stock and Parent Common Stock received in the Merger in the quarter in which the Closing occurs. V.20. Stock Options and Employee Benefits. (a) At the Effective Time, each outstanding option to purchase shares of the Company Common Stock (each a "Company Stock Option") under the Company Stock Option Plans, whether or not exercisable, will be assumed by Parent. Each Company Stock Option so assumed by Parent under this Agreement will continue to have, and be subject to, the same terms and conditions set forth in the applicable Company Stock Option Plan and option certificate immediately prior to the Effective Time (including, without limitation, any existing repurchase rights or vesting provisions other than any provision providing for accelerated vesting in connection with the Merger, which provisions shall not apply with respect to the Merger), except that (i) each Company Stock Option will be exercisable for that number of whole shares of Parent Common Stock as the holder would have been entitled to receive pursuant to the Merger had such holder exercised such option in full immediately prior to the Effective Time, without taking into account whether or not such option is in fact then exercisable and all shares of Company Common Stock issuable upon the exercise of such option were converted into Parent Common Stock pursuant to Section 1.6, rounded down to the nearest whole number of shares of Parent Common Stock and (ii) the per share exercise price for the shares of Parent Common Stock issuable upon exercise of such assumed Company Stock Option will be equal to the quotient determined by dividing the exercise price per share of Company Common Stock at which such Company Stock Option was exercisable immediately prior to the Effective Time by the number of shares of Parent Common Stock deemed purchasable, in accordance with the terms of this Section, pursuant to such Company Common Stock Option, rounded up to the nearest whole cent. Parent shall take all corporate action necessary to reserve for issuance a sufficient number of shares of Parent Common Stock for delivery upon exercise of options assumed by Parent pursuant to this Section. As soon as practicable after the Effective Time, Parent shall deliver to each holder of a Company Stock Option an appropriate notice setting forth such holder's rights pursuant thereto. (b) It is intended that the Company Stock Options assumed by Parent shall qualify following the Effective Time as incentive stock options as defined in Section 422 of the Code to the extent the Company Stock Options qualified as incentive stock options immediately prior to the Effective Time and the provisions of this Section 5.20 shall be applied consistent with such intent. (c) Parent agrees to file a registration statement on Form S-8 for the shares of Parent Common Stock issuable with respect to assumed Company Stock Options within 10 business days after the Effective Time and shall use its reasonable efforts to maintain the effectiveness of such registration statement thereafter for so long as any of such options or other rights remain outstanding. V.21. Rights Plan Redemption. Not later than immediately prior to the Effective Time, the Company shall redeem all outstanding rights under the Rights Agreement so that the Rights Agreement will not apply to the consummation of the transactions contemplated hereby. VI. CONDITIONS TO THE MERGER VI.1. Conditions to Obligations of Each Party to Effect the Merger. The respective obligations of each party to this Agreement to effect the Merger shall be subject to the satisfaction or waiver at or prior to the Effective Time of the following conditions: (a) Stockholder Approval. This Agreement shall have been approved by the requisite vote under the Company's charter and bylaws, applicable laws of the State of New Hampshire and the rules and regulations of the NYSE, as and to the extent required. (b) NHPUC Approval. The Merger, the Merger Agreement and the related transactions contemplated hereunder shall have received all required or requested approvals or reviews from the NHPUC pursuant to applicable New Hampshire law on terms and conditions which (i) with respect to rates and recovery of costs, including without limitation transaction, premium and integration costs, associated with the Merger, are not less favorable to the Surviving Corporation or EnergyNorth Natural Gas, Inc. or Parent than those contained in the order of the NHPUC, dated July 20, 1998, In Re Northern Utilities, Inc. (DF-040, Order No. 22,983), and (ii) do not otherwise have or constitute a material adverse effect on the business, assets (including intangible assets), prospects, financial condition or results of operations of the Surviving Corporation or EnergyNorth Natural Gas, Inc. or the other gas distribution Subsidiaries of the Parent, and such approval shall be final, nonappealable and not under appeal. (c) Registration Statement Effective. The SEC shall have declared the Registration Statement effective, and no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose, and no similar proceeding in respect of the Proxy Statement, shall have been initiated or threatened in writing by the SEC. (d) PUHCA Approval. The requisite approval of the SEC under PUHCA shall have been obtained on terms and conditions that (i) do not have and cannot reasonably be expected to have a Parent Material Adverse Effect and (ii) are not otherwise materially burdensome to the Parent, it being understood that any requirement that the Parent register as a non-exempt "holding company" under PUHCA or divest any of its or the Surviving Corporation's operations shall be deemed to be materially burdensome for purposes of this provision unless such requirement arises as a result of any other transaction or transactions engaged in by Parent or its Subsidiaries after the date of this Agreement and not solely as a result of the transactions contemplated by this Agreement. (e) No Order. No Governmental Entity shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, injunction or other order (whether temporary, preliminary or permanent) which is in effect and which has the effect of making the Merger illegal, otherwise prohibiting consummation of the Merger or having a material adverse effect on the Merger. (f) Tax Opinions. The Parent and the Company shall each have received substantially identical written opinions from their counsel, Ropes & Gray and Hale and Dorr LLP, respectively, in form and substance reasonably satisfactory to them, to the effect that the Merger will constitute a reorganization within the meaning of Section 368(a) of the Code; provided that if the respective counsel to the Parent or the Company does not render such opinion, this condition shall nonetheless be deemed satisfied with respect to such party if counsel to the other party renders such opinion to such party. (g) HSR and Similar Compliance. Any applicable waiting period relating to the consummation of Merger under the HSR Act shall have expired or been terminated by the reviewing agency. (h) Required Approvals. All consents and approvals referred to in Section 6.1(h) of the Company Disclosure Schedule (or in the applicable Disclosure Schedule with respect thereto) shall have been obtained. VI.2. Additional Conditions to Obligations of the Company. The obligations of the Company to consummate and effect the Merger shall be subject to the satisfaction at or prior to the Effective Time of each of the following conditions, any of which may be waived, in writing, exclusively by the Company: (a) Representations and Warranties. The representations and warranties of the Parent and Merger Sub contained in this Agreement shall be true and correct on and as of the Effective Time (without regard to any updates to the Parent Disclosure Schedule, unless otherwise agreed by the Company), except for changes contemplated by this Agreement and except for those representations and warranties that address matters only as of a particular date (which shall remain true and correct as of such particular date), with the same force and effect as if made on and as of the Effective Time, except, in all such cases, where the failure to be so true and correct (without regard to any materiality or knowledge qualifications contained therein) would not have a Parent Material Adverse Effect, and the Company shall have received a certificate to such effect signed on behalf of the Parent by the Chief Executive Officer, Chief Operating Officer or Chief Financial Officer of the Parent. (b) Agreements and Covenants. The Parent and Merger Sub shall have performed or complied in all material respects with all agreements and covenants required by this Agreement to be performed or complied with by them on or prior to the Effective Time, and the Company shall have received a certificate to such effect signed on behalf of the Parent by the Chief Executive Officer, Chief Operating Officer or Chief Financial Officer of the Parent. (c) Listing. The shares of Parent Common Stock issuable to stockholders of the Company pursuant to this Agreement shall have been authorized for listing on the NYSE, the Pacific Exchange and the Boston Stock Exchange. VI.3. Additional Conditions to the Obligations of the Parent and Merger Sub. The obligations of the Parent and Merger Sub to consummate and effect the Merger shall be subject to the satisfaction at or prior to the Effective Time of each of the following conditions, any of which may be waived, in writing, exclusively by the Parent: (a) Representations and Warranties. The representations and warranties of the Company contained in this Agreement shall be true and correct on and as of the Effective Time (without regard to any updates to the Company Disclosure Schedule, unless otherwise agreed by the Parent), except for changes contemplated by this Agreement and except for those representations and warranties that address matters only as of a particular date (which shall remain true and correct as of such particular date), with the same force and effect as if made on and as of the Effective Time, except, in all such cases, where the failure to be so true and correct (without regard to any materiality or knowledge qualifications contained therein) would not have a Company Material Adverse Effect, and the Parent and Merger Sub shall have received a certificate to such effect signed on behalf of the Company by the Chief Executive Officer, Chief Operating Officer or Chief Financial Officer of the Company. (b) Agreements and Covenants. The Company shall have performed or complied in all material respects with all agreements and covenants required by this Agreement to be performed or complied with by it on or prior to the Effective Time, and the Parent shall have received a certificate to such effect signed on behalf of the Company by the Chief Executive Officer, Chief Operating Officer or Chief Financial Officer of the Company. VII. TERMINATION VII.1. Termination. This Agreement may be terminated at any time prior to the Effective Time of the Merger, whether before or after approval of the Merger by the stockholders of the Company or the NHPUC: (a) by mutual written consent duly authorized by the Board of Trustees of the Parent and the Board of Directors of the Company; (b) by either the Company or the Parent if the Merger shall not have been consummated by July 14, 2000 (which date may be extended at the written request of either the Parent or the Company to January 14, 2001 to the extent necessary to satisfy the condition set forth in Section 6.1(b), (d) or (g) and so long as all other conditions have been or shall be capable of being fulfilled); provided, however, that the right to terminate this Agreement under this Section 7.1(b) shall not be available to any party whose action or failure to act has been a principal cause of or resulted in the failure of the Merger to occur on or before such date if such action or failure to act constitutes a breach of this Agreement; (c) by either the Company or the Parent if a court of competent jurisdiction or governmental, regulatory or administrative agency or commission shall have issued an order, decree or ruling or taken any other action (an "Order"), in any case having the effect of permanently restraining, enjoining or otherwise prohibiting the Merger, which order is final, nonappealable and not under appeal; (d) by either the Company or the Parent if the required approval of the stockholders of the Company contemplated by this Agreement shall not have been obtained on or before March 1, 2000 or by reason of the failure to obtain the required vote upon a vote taken at a duly held meeting of the Company's stockholders duly convened therefor or at any adjournment thereof (a "Company Stockholder Approval Failure Event"); provided, however, that the right to terminate this Agreement under this Section 7.1(d) shall not be available to the Company where the failure to obtain Company stockholder approval shall have been caused by the action or failure to act of the Company in breach of this Agreement and shall not be available to Parent where such failure is caused by a breach of this Agreement by Parent; (e) by either the Company or the Parent, if the Company shall have accepted or approved an Acquisition Proposal or if the Company's Board of Directors recommends an Acquisition Proposal to the stockholders of the Company as permitted by Section 5.4(b); (f) by the Parent, if the Board of Directors of the Company shall have (i) failed to convene the Company Stockholders' Meeting, as required by Section 5.2, (ii) failed to recommend approval of this Agreement in the Proxy Statement or withheld, withdrawn or modified in a manner adverse to the Parent such recommendation or resolved to do so, or (iii) approved or recommended an Acquisition Proposal; (g) by the Company, upon a breach of any representation, warranty, covenant or agreement on the part of the Parent set forth in this Agreement, if (i) as a result of such breach the conditions set forth in Section 6.2(a) or Section 6.2(b) would not be satisfied as of the time of such breach and (ii) such breach shall not have been cured by the Parent within ten (10) business days following receipt by the Parent of written notice of such breach from the Company; (h) by the Parent, upon a breach of any representation, warranty, covenant or agreement on the part of the Company set forth in this Agreement, if (i) as a result of such breach the conditions set forth in Section 6.3(a) or Section 6.3(b) would not be satisfied as of the time of such breach and (ii) such breach shall not have been cured by the Company within ten (10) business days following receipt by the Company of written notice of such breach from the Parent; (i) by the Parent, if there shall have occurred any event or condition that constitutes a Company Material Adverse Effect since the date of this Agreement which condition or event shall not have been ameliorated such that it is no longer a Company Material Adverse Effect within ten (10) business days following receipt by the Company of notice from the Parent; or (j) by the Company, if there shall have occurred any event or condition that constitutes a Parent Material Adverse Effect since the date of this Agreement, which condition or event shall not have been ameliorated such that it is no longer a Parent Material Adverse Effect within ten (10) business days following receipt by the Parent of notice from the Company. VII.2. Notice of Termination; Effect of Termination. Any termination of this Agreement under Section 7.1 above will be effective immediately upon the delivery of written notice of the terminating party to the other parties hereto. In the event of the termination of this Agreement as provided in Section 7.1, this Agreement shall be of no further force or effect, except (i) as set forth in this Section 7.2, Section 7.3 and Article 8 (General Provisions), each of which shall survive the termination of this Agreement. No termination of this Agreement shall affect the obligations of the parties contained in the Confidentiality Agreements, all of which obligations shall survive termination of this Agreement in accordance with their terms. VII.3. Fees and Expenses. (a) Except as set forth in this Section 7.3, all fees and expenses incurred in connection with this Agreement and the transactions contemplated hereby shall be paid by the party incurring such expenses, whether or not the Merger is consummated; provided, however, that the Parent and the Company shall share equally all fees and expenses, other than attorneys' and accountants' fees and expenses, incurred in relation to the printing and filing of the Proxy Statement (including any preliminary materials related thereto) and the Registration Statement (including financial statements and exhibits) and any amendments or supplements thereto. (b) The Company shall pay to the Parent an amount equal to all out-of-pocket expenses and fees incurred by the Parent, including without limitation fees and expenses payable to all legal, accounting, financial and other professional advisors, relating to the Merger or the transactions contemplated by this Agreement not exceeding $2,000,000 in the aggregate upon the termination of this Agreement by the Parent pursuant to 7.1(h) or upon any termination of this Agreement as to which subparagraph (i), (ii) or (iii) of Section 7.3(c) is applicable. (c) The Company shall pay the Parent a termination fee of $5,500,000 (plus all amounts payable pursuant to Section 7.3(b)), upon the earliest to occur of the following events: (i) the termination of this Agreement pursuant to Section 7.1(e) or (f); (ii) the termination of this Agreement pursuant to Section 7.1(d) if, at the time of the Seller Stockholder Approval Failure Event; (A) there shall have been announced, commenced or occurred an Alternative Transaction (as defined in Section 7.3(g)) and the Company shall have either (x) executed an agreement to engage in the same or (y) the Company's Board of Directors shall not have recommended against such Alternative Transaction affirmatively or, if the Company's Board of Directors has recommended against such Alternative Transaction, the Company's Board of Directors shall have withdrawn such recommendation against such Alternative Transaction or modified such recommendation in a manner adverse to the Parent; or (B) there shall have been announced, commenced or occurred an Alternative Transaction with a Third Party (as defined in Section 7.3(g)) and (x) the Company shall have engaged in, or entered into an agreement to engage in, an Alternative Transaction with such Third Party or any affiliate thereof or with a Competing Party (as defined in Section 7.3(g)) within 12 months of the date of the Company Stockholder Approval Failure Event or (y) the Company's Board of Directors shall have recommended an Alternative Transaction with such Third Party or any affiliate thereof or with a Competing Party within 12 months after the date of the Company Stockholder Approval Failure Event; or (iii) the termination of this Agreement by the Parent pursuant to Section 7.1(h) after a willful breach by the Company of this Agreement, if before such termination or within twelve months thereafter the Company shall have entered into an agreement to engage in or shall have engaged in an Alternative Transaction. (d) The Parent shall pay to the Company an amount equal to all out-of-pocket expenses and fees incurred by the Company, including without limitation fees and expenses payable to all legal, accounting, financial and other professional advisors, relating to the Merger or the transactions contemplated by this Agreement not exceeding $2,000,000 in the aggregate upon the termination of this Agreement by the Company pursuant to Section 7.1(g). (e) The amounts payable pursuant to Section 7.3(b), (c) or (d) shall be paid by wire transfer within three business days after the event giving rise to such payment; provided that in no event shall the Company or the Parent be required to pay any expenses or termination fees to the other party if, immediately prior to the termination of this Agreement, the other party was in material breach of any of its material obligations under this Agreement. If one party fails to promptly pay to the other any fee due hereunder, the defaulting party shall pay the costs and expenses (including legal fees and expenses) in connection with any action, including the filing of any lawsuit or other legal action, taken to collect payment, together with interest on the amount of any unpaid fee at the publicly announced prime rate of BankBoston, N.A. from the date such fee was required to be paid. (f) As used in this Agreement, (A) "Alternative Transaction" means either (i) a transaction pursuant to which any person (or group of persons) other than the Parent or its Affiliates (a "Third Party"), acquires 33% or more of the outstanding shares of Company Common Stock, pursuant to a tender offer or exchange offer or otherwise, (ii) a merger, consolidation or combination involving the Company in which the holders of Company Common Stock do not own at least a majority of the equity of the surviving entity, or (iii) any other transaction pursuant to which any Third Party acquires control of assets (including for this purpose the outstanding equity securities of Subsidiaries of the Company, and the entity surviving any merger or business combination including any of them) of the Company having a fair market value (as determined by the Board of Directors of the Company in good faith) equal to more than 33% of the fair market value of all the assets of the Company immediately prior to such transaction, or (iv) any public announcement by the Company of a proposal, plan or intention to do any of the foregoing or any agreement to engage in any of the foregoing, and (B) "Competing Party" shall mean any person other than the Parent or its affiliates who announces or commences an Alternative Transaction, or with whom an Alternative Transaction occurs, while an Alternative Transaction with a Third Party is pending. (g) If this Agreement is terminated by a party as a result of a willful breach by the other party (other than under the circumstances described in Section 7.3(c)(iii) above, provided that under such circumstances Parent may exercise and enforce its rights and remedies under this paragraph (g) until and unless the Company engages in an Alternative Transaction, in which event the provisions of Section 7.3(c)(iii) shall thereupon apply), the terminating party may pursue any remedies available to it at law or in equity and shall, in addition to its out-of-pocket expenses (which shall be paid as specified above and shall not be limited to $2,000,000), be entitled to retain such additional amounts as the terminating party may be entitled to receive at law or in equity; provided, however, no party shall be responsible for any special, consequential or incidental damages hereunder, it being understood and agreed that no party shall be entitled to payment under both this Section 7.3(g) and Section 7.3(c)(iii). VIII. GENERAL PROVISIONS VIII.1. Non-Survival of Representations and Warranties. The representations and warranties of the Company, the Parent and Merger Sub contained in this Agreement shall terminate at the Effective Time, and only the covenants that by their terms survive the Effective Time shall survive the Effective Time. VIII.2. Notices. All notices and other communications hereunder shall be in writing and shall be deemed given if delivered personally or by commercial delivery service, or sent via telecopy (receipt confirmed) to the parties at the following addresses or telecopy numbers (or at such other address or telecopy numbers for a party as shall be specified by like notice): if to the Parent or Merger Sub, to: Eastern Enterprises 9 Riverside Road Weston, Massachusetts 02493 Attention: J. Atwood Ives Chairman and Chief Executive Officer Telephone: (781) 647-2302 Facsimile: (781) 647-2350 with a copy to: Eastern Enterprises 9 Riverside Road Weston, Massachusetts 02493 Attention: L. William Law, Jr., Esq. Senior Vice President and General Counsel Telephone: (781) 647-2313 Facsimile: (781) 647-2398 if to the Company, to: EnergyNorth, Inc. 1260 Elm Street Manchester, New Hampshire 03101 Attention: Robert R. Giordano President and Chief Executive Officer Telephone: (603) 668-3779 Facsimile: (603) 621-2982 with a copy to: Hale and Dorr LLP 60 State Street Boston, Massachusetts 02109 Attention: David E. Redlick, Esq. Telephone: (617) 526-6484 Facsimile: (617) 526-5000 VIII.3. Interpretation; Knowledge. When a reference is made in this Agreement to Exhibits, such reference shall be to an Exhibit to this Agreement unless otherwise indicated. The words "include," "includes" and "including" when used herein shall be deemed in each case to be followed by the words "without limitation." The table of contents and headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. When reference is made herein to "business of" an entity, such reference shall be deemed to include the business of all direct and indirect subsidiaries of such entity. Reference to the Subsidiaries of an entity shall be deemed to include all direct and indirect subsidiaries of such entity. References to the "knowledge of the Company," or any similar expression shall mean the actual knowledge of any executive officer of the Company. VIII.4. Counterparts. This Agreement may be executed in one or more counterparts, all of which shall be considered one and the same agreement and shall become effective when one or more counterparts have been signed by each of the parties and delivered to the other party, it being understood that all parties need not sign the same counterpart. VIII.5. Entire Agreement. This Agreement and the documents and instruments and other agreements among the parties hereto as contemplated by or referred to herein, including the Company Disclosure Schedule and the Parent Disclosure Schedule (i) constitute the entire agreement among the parties with respect to the subject matter hereof and supersede all prior agreements and understandings, both written and oral, among the parties with respect to the subject matter hereof, it being understood that the Confidentiality Agreements shall continue in full force and effect until the Closing and shall survive any termination of this Agreement; and (ii) are not intended to confer upon any other person any rights or remedies hereunder, except as set forth herein. VIII.6. Severability. In the event that any provision of this Agreement or the application thereof, becomes or is declared by a court of competent jurisdiction to be illegal, void or unenforceable, the remainder of this Agreement will continue in full force and effect and the application of such provision to other persons or circumstances will be interpreted so as reasonably to effect the intent of the parties hereto. The parties further agree to replace such void or unenforceable provision of this Agreement with a valid and enforceable provision that will achieve, to the extent possible, the economic, business and other purposes of such void or unenforceable provision. VIII.7. Amendment. Subject to applicable law, this Agreement may be amended by the parties hereto at any time by execution of an instrument in writing signed on behalf of each of the parties hereto. VIII.8. Extension; Waiver. At any time prior to the Effective Time any party hereto may, to the extent legally allowed, (i) extend the time for the performance of any of the obligations or other acts of the other parties hereto, (ii) waive any inaccuracies in the representations and warranties made to such party contained herein or in any document delivered pursuant hereto and (iii) waive compliance with any of the agreements or conditions for the benefit of such party contained herein. Any agreement on the part of a party hereto to any such extension or waiver shall be valid only if set forth in an instrument in writing signed on behalf of such party. VIII.9. Other Remedies; Specific Performance. Except as otherwise provided herein, any and all remedies herein expressly conferred upon a party will be deemed cumulative with and not exclusive of any other remedy conferred hereby, or by law or equity upon such party, and the exercise by a party of any one remedy will not preclude the exercise of any other remedy. The parties hereto agree that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed that the parties shall be entitled to an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and provisions hereof in any court of the United States or any state having jurisdiction, this being in addition to any other remedy to which they are entitled at law or in equity. VIII.10. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New Hampshire, regardless of the laws that might otherwise govern under applicable principles of conflicts of law thereof. VIII.11. Assignment. No party may assign either this Agreement or any of its rights, interests, or obligations hereunder without the prior written approval of the of the other parties. VIII.12. Parties in Interest. Except for rights of Indemnified Parties as set forth in Sections 5.13, 5.14 and 5.16, nothing in this Agreement, express or implied, is intended to confer upon any other person any rights or remedies of any nature whatsoever under or by reason of this Agreement. VIII.13. Waiver of Jury Trial. EACH OF THE PARENT, MERGER SUB AND COMPANY HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE ACTIONS OF THE PARENT, THE MERGER SUB OR THE COMPANY IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE AND ENFORCEMENT HEREOF. VIII.14. Reference is hereby made to the declaration of trust establishing Eastern Enterprises (formerly Eastern Gas and Fuel Associates) dated July 18, 1929, as amended, a copy of which is on file in the office of the Secretary 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 Enterprises, EE Acquisition Company, Inc. and EnergyNorth, Inc. have caused this Agreement to be signed as a sealed instrument by their duly authorized respective officers, all as of the date first written above. EASTERN ENTERPRISES By: /s/ J. Atwood Ives Title: Chief Executive Officer EE ACQUISITION COMPANY, INC. By: /s/ Walter J. Flaherty Title: President ENERGYNORTH, INC. By: /s/ Robert R. Giordano Title: President and Chief Executive Officer EX-10.11.1 3 COC AGREEMENT WITH J. ATWOOD IVES Officer Change of Control Agreement - J. Atwood Ives AGREEMENT This Agreement by and between Eastern Enterprises, a Massachusetts business trust with its principal offices in Weston, Massachusetts ("Eastern"), and J. Atwood Ives (the "Executive"), is entered into as of the 22nd day of September, 1999, and amends and supersedes in its entirety the agreement between the parties dated July 22, 1998. W I T N E S S E T H T H A T: WHEREAS the Executive is an executive employee of Eastern; WHEREAS, Eastern has previously entered into an Agreement, dated November 27, 1991, with Executive (the "Employment Agreement"), under which Eastern has agreed to pay Executive certain income and benefits in the event of termination of Executive's employment; and WHEREAS the Board of Trustees of Eastern (the "Board") has determined that it is in the best interests of Eastern, its shareholders and the Executive to assure continuity in the management of Eastern'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. Eastern 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 Eastern, 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 Eastern or its subsidiaries. No purported termination of Executive shall be deemed a termination for Cause unless the Board, by an affirmative vote of not less than two-thirds of the entire membership of the Board at a meeting of the Board, shall have made a determination that Cause exists nor unless, in the case of Cause asserted under clause (a)(ii) above, the 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 Board. In the case of Cause asserted under clause (a)(ii) above, the thirty (30) days' prior written notice must be given within 120 days following the Board first becoming aware of the occurrence of the last event providing a basis or otherwise significantly contributing to a determination of Cause. (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; provided, however, that there shall be excluded from this clause (iv) any individual whose initial assumption of office occurred as a result of an actual or threatened election contest with respect to the election or removal of Trustees or other actual or threatened solicitation of proxies or consents, by or on behalf of a person other than the Board of Trustees. (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 Eastern's long term disability program. (e) "Effective Date" means the earlier of (i) the date on which Eastern enters into a definitive agreement, the transactions contemplated by which will, when consummated, constitute a Change of Control, or (ii) the date which precedes the Change of Control by six (6) months. (f) "Good Reason" means any of the following unless promptly, fully and retroactively corrected 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 diminution in the nature or scope of 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 Eastern. (g) "Protected Period means the period beginning on the Effective Date and ending on the date which follows the related Change of Control by twenty-four (24) months. 3. POSITION AND RESPONSIBILITIES. During the period of employment hereunder, the Executive agrees to serve Eastern 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 Effective Date and shall continue for a period that ends on the last day of the Protected Period. (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 Eastern 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 to Eastern. 5. COMPENSATION AND BENEFITS. During the Executive's employment under this Agreement, Eastern shall pay, provide and make available the following: (a) Eastern 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 Eastern immediately prior to the Effective Date. (b) In addition to the salary payable under subsection (a) above, 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, equity compensation, and perquisites not less favorable, and on terms not less favorable, to the Executive than the bonus opportunities, benefits, equity compensation, 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. Eastern 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 Eastern 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 Eastern for Cause (but only if such termination is accomplished in the manner specified in Section 2(a)); (b) by Eastern 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 Eastern 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 Eastern of the Executive's employment under this Agreement shall take effect only after thirty (30) days' prior written notice by Eastern to the Executive. 8. VESTING OF CERTAIN AWARDS AND BENEFITS.1 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 the 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 terminated or been terminated under Section 7(b) or Section 7(c) above on or after the Effective Date but before the related Change of Control, the immediately preceding sentence shall be applied by substituting the words "held by the Executive immediately prior to termination of employment" for the words "then held by the Executive". If the Executive's employment under this Agreement shall have terminated or been terminated under Section 7(b) or Section 7(c) above, all of the Executive's stock options (including replacement options, if any, issued in substitution for such stock options in connection with the Change in Control) held by the Executive immediately prior to such termination shall be exercisable for a period that ends not earlier than the earlier of (i) the date on which the option would have expired or terminated had the Executive continued in employment, and (ii) the date which follows the Change of Control by thirteen (13) months; provided, that clause (ii) of this sentence shall not operate to extend the period of exercisability for any stock option that is intended to be an "incentive stock option" within the meaning of Section 422 of the Code; and further provided, that if stock options are not assumed (and no replacement options are issued) in connection with the Change of Control, Eastern shall provide the Executive the opportunity to exercise all of the stock options then held by the Executive (taking into account the provisions of this sentence) 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 Eastern pursuant to Section 7(b) above, Eastern 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 Executive's total target benefit or benefits under the annual bonus or incentive plan or plans in which the Executive was participating for the period including the date of termination or three (3) 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; provided, that for purposes of determining the Executive's target benefit for any portion of an award opportunity as to which no target amount is specified, (A) if the portion of the award opportunity as to which no target benefit is specified is a financial award opportunity, then the target benefit for such portion shall be 66 2/3% of the maximum award opportunity for such portion, and (B) if the portion of the award opportunity as to which no target benefit is specified is a management objective or "MBO" award opportunity, then the target benefit for such portion shall be 75% of the maximum award opportunity for such portion; and further provided, that the Executive's total target benefit or benefits will equal the sum of the separate portions of the award opportunity as hereinabove determined; and (iii) a lump sum cash amount equal to the product of the Executive's total target benefit or benefits (as described at paragraph (ii) above, but determined solely by reference to the annual bonus or incentive plan or plans in which the Executive was participating for the period including the date of termination) times a fraction, the numerator of which is the number of days elapsed in such bonus or incentive period prior to the date of termination, and the denominator of which is three hundred sixty-five (365). In addition, upon termination of employment Eastern 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 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 Eastern then in effect, Eastern shall provide for substantially equivalent alternative coverage and benefits for the Executive and the Executive's family. Notwithstanding the foregoing, Eastern shall not be obligated to provide a benefit or coverage under the preceding provisions of 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. Immediately following the termination of the benefits provided under this Section 9(b) whenever occurring (or at any earlier time subsequent to the termination of employment giving rise to such benefits), Eastern shall provide or cause to be provided to the Executive and the Executive's family retiree health, dental, life and other retiree benefits, in each case not less favorable (and on terms not less favorable) to the Executive and the Executive's family than those available to eligible retirees and their families under the retiree benefit program of similar type (for example, retiree medical benefits or retiree life insurance) as in effect (i) immediately prior to the date of the termination of the Executive's employment if immediately prior to that date the benefits available under that program to eligible retirees and their families were more favorable (and were made available on terms that were more favorable) than the benefits and terms, if any, available to eligible retirees and their families under that program as in effect immediately prior to the Effective Date, or (ii) in all other cases, the Effective Date; provided, that the Executive and the Executive's family shall be eligible for retiree benefits under this sentence only if the Executive would have been eligible to participate in the retiree program of similar type (as in effect immediately prior to the Effective Date or immediately prior to the termination of the Executive's employment, whichever provided for more liberal eligibility requirements) if (A) such program had continued unchanged and the Executive had continued in employment through the end of the benefits continuation period described in the first sentence of this Section 9(b) (determined without regard to any early termination of such period attributable to benefits made available by a subsequent employer), and (B) the Executive had then retired. For purposes of applying the immediately preceding sentence, any minimum age requirement applicable to the Executive for participation in a retiree benefit program of Eastern or its subsidiaries shall be deemed satisfied if, as of the end of the benefits continuation period described in the first sentence of this Section 9(b) (determined without regard to any early termination of such period attributable to benefits made available by a subsequent employer), the Executive is or would have been at least age 52. Nothing in this paragraph shall be construed as requiring Eastern to pay severance in addition to the payments and benefits otherwise provided for in this Agreement. (c) If the Executive so requests in connection with a termination described in (a)(1) or (a)(2) above, Eastern will pay in accordance with prior practice the costs of an out-placement service used by the Executive as a result of such termination. (d) Upon termination of the Executive's employment under this Agreement for any reason, the Executive shall have the right to purchase the automobile, if any, supplied to the Executive by Eastern or its subsidiaries in connection with the Executive's employment, or any automobile substituted therefor with the Executive's approval, at its "blue book" value. 10. CERTAIN TAX-RELATED PAYMENTS. Notwithstanding any other provision of this Agreement, the cash payments described at Section 9(a)(i), (ii) and (iii) hereof shall be reduced, but not below zero, to the extent (and only to the extent) necessary to avoid having any such payment or portion thereof treated as a "parachute payment" within the meaning of Section 280G(b)(2) of the Code. 11. SOURCE OF PAYMENTS. All payments provided for under this Agreement shall be paid or provided from the general assets of Eastern and its subsidiaries or affiliates (to the extent not provided by insurance). Eastern 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 Eastern's ability to establish or fund a so-called "rabbi trust" or similar arrangement to help Eastern 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 Eastern's liabilities hereunder or otherwise adversely affect the Executive. 12. LITIGATION EXPENSES. In the event of any litigation or other proceeding between 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), Eastern 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 Massachusetts law to the contrary, in no event shall the Executive be required to reimburse Eastern for any of the costs and expenses relating to such litigation or other proceeding. 13. INCOME TAX WITHHOLDING. 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. CONFIDENTIAL INFORMATION. The Executive agrees that, following any termination of his employment under this Agreement, 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 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; OTHER SEVERANCE BENEFITS. If the severance pay provisions of Section 5.1 and Section 5.3 of Eastern's Employee Salary and Benefits Protection Plan as amended and restated September 1, 1999 (the "COC Severance Plan") (as such provisions would have applied to the Executive had the Executive been eligible to participate in the COC Severance Plan) would have yielded a larger severance pay amount than that determined under paragraphs (i), (ii) and (iii) of Section 9(a) of this Agreement, the Executive shall be entitled under Section 9(a) hereof to such greater severance pay amount in lieu of the formula amounts determined under Section 9(a)(i), (ii) and (iii); provided, that such severance pay shall continue to be subject to the other terms of this Agreement. If the benefits continuation provisions of Section 5.2 of the COC Severance Plan (as such provisions would have applied to the Executive and the Executive's family had the Executive been eligible to participate in the COC Severance Plan) would have provided for continuation of benefits at least as good as those provided under this Agreement but for a longer period of time, the period described in Section 9(b) of this Agreement for the continuation of benefits shall be deemed modified to provide for such longer period of benefits continuation. Subject to the foregoing, this Agreement contains the entire understanding between Eastern 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 Eastern (including any of Eastern's subsidiaries) 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 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 hereunder. Upon such a consolidation, merger or transfer of assets and assumption, the term "Eastern", 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 under this Agreement shall survive the termination for any reason of this Agreement (whether such termination is by Eastern, by the Executive, upon the expiration of this Agreement or otherwise). 19. NO MITIGATION OR OFFSET. Executive is not required to seek other employment or to attempt in any way to reduce any amounts payable to Executive by Eastern under this Agreement. 20. 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 the Executive: J. Atwood Ives 17 West Cedar Street Boston, MA 02108 or to such other address as either party shall have previously specified in writing to the other pursuant to this Section 20. 21. 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. 22. BINDING AGREEMENT. This Agreement shall be binding upon and shall inure to the benefit of the Executive and Eastern and their respective successors and assigns. 23. MODIFICATION AND WAIVER. (a) 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. 24. 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. 25. GOVERNING LAW. This Agreement and its validity, interpretation, performance and enforcement shall be governed by the laws of the Commonwealth of Massachusetts, without giving effect to the choice of law provisions in effect in such State. 26. MISCELLANEOUS. 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 has caused this Agreement to be executed by its officers thereunto duly authorized, and the Executive has signed this Agreement, all as of the date first above written. EASTERN ENTERPRISES By: /s/ Fred C. Raskin Fred C. Raskin /s/ J. Atwood Ives J. Atwood Ives - -------- 1 In the event of a Change of Control intended to be accounted for as a pooling of interests, the following changes would be made to this Section 8 if similar changes in Eastern's other Officer Change of Control Agreements were determined (by the independent accounting firm serving as Eastern's independent auditors prior to the Change of Control) to be required to preserve the availability of such accounting treatment: (i) the term "Effective Date" as used in this Section 8 would mean the date that precedes the Change of Control by six months, and (ii) the extended exercisability provisions of the third sentence of this Section 8 shall not apply; however, options held by the Executive prior to termination of employment under Section 7(b) or Section 7(c), if termination occurs after the Effective Date but before the Change of Control, would remain exercisable until thirty (30) days following the Change of Control (or, if later, until they would have been exercisable without regard to the provisions of this Section 8), subject to earlier expiration and an accelerated opportunity to exercise if the options are not assumed (and no replacement options are issued) in connection with the Change of Control. EX-10.11.2 4 COC AGREEMENT WITH FRED C. RASKIN Officer Change of Control Agreement - Fred C. Raskin AGREEMENT This Agreement by and between Eastern Enterprises, a Massachusetts business trust with its principal offices in Weston, Massachusetts ("Eastern"), and Fred C. Raskin (the "Executive"), is entered into as of the 22nd day of September, 1999, and amends and supersedes in its entirety the change of control agreement between the parties dated September 1, 1998: W I T N E S S E T H T H A T: WHEREAS the Executive is an executive employee of Eastern; WHEREAS Eastern has previously executed a separate agreement dated as of September 1, 1998 with Executive (the "Employment Agreement"), under which Eastern has assured Executive of certain salary and benefit amounts following termination of his employment, whether in the context of a change of control or otherwise; and WHEREAS the Board of Trustees of Eastern (the "Board") has determined that it is in the best interests of Eastern, its shareholders and the Executive to assure continuity in the management of Eastern'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. Eastern 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 Eastern, 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 Eastern or its subsidiaries. No purported termination of Executive shall be deemed a termination for Cause unless the Board shall have made a determination that Cause exists nor unless, in the case of Cause asserted under clause (a)(ii) above, the 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 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. (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 Eastern's long term disability program. (e) "Effective Date" means the earlier of (i) the date on which Eastern enters into a definitive agreement, the transactions contemplated by which will, when consummated, constitute a Change of Control, or (ii) the date which precedes the Change of Control by six (6) months. (f) "Good Reason" means any of the following unless promptly, fully and retroactively corrected 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 Eastern. (g) "Protected Period" means the period beginning on the Effective Date and ending on the date which follows the related Change of Control by twenty-four (24) months. 3. POSITION AND RESPONSIBILITIES. During the period of employment hereunder, the Executive agrees to serve Eastern 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 Effective Date and shall continue for a period that ends on the last day of the Protected Period. (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 Eastern 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 to Eastern. 5. COMPENSATION AND BENEFITS. During the Executive's employment under this Agreement, Eastern shall pay, provide and make available the following: (a) Eastern 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 Eastern immediately prior to the Effective Date. (b) In addition to the salary payable under subsection (a) above, 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. Eastern 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 Eastern 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 Eastern for Cause (but only if such termination is accomplished in the manner specified in Section 2(a)); (b) by Eastern 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 Eastern 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 Eastern of the Executive's employment under this Agreement shall take effect only after thirty (30) days' prior written notice by Eastern to the Executive. 8. VESTING OF CERTAIN AWARDS AND BENEFITS.1 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 the 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 terminated or been terminated under Section 7(b) or Section 7(c) above on or after the Effective Date but before the related Change of Control, the immediately preceding sentence shall be applied by substituting the words "held by the Executive immediately prior to termination of employment" for the words "then held by the Executive". If the Executive's employment under this Agreement shall have terminated or been terminated under Section 7(b) or Section 7(c) above, all of the Executive's stock options (including replacement options, if any, issued in substitution for such stock options in connection with the Change in Control) held by the Executive immediately prior to such termination shall be exercisable for a period that ends not earlier than the earlier of (i) the date on which the option would have expired or terminated had the Executive continued in employment, and (ii) the date which follows the Change of Control by thirteen (13) months; provided, that clause (ii) of this sentence shall not operate to extend the period of exercisability for any stock option that is intended to be an "incentive stock option" within the meaning of Section 422 of the Code; and further provided, that if stock options are not assumed (and no replacement options are issued) in connection with the Change of Control, Eastern shall provide the Executive the opportunity to exercise all of the stock options then held by the Executive (taking into account the provisions of this sentence) 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 Eastern pursuant to Section 7(b) above, Eastern 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 Executive's total target benefit or benefits under the 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 total 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; provided, that for purposes of determining the Executive's target benefit for any portion of an award opportunity as to which no target amount is specified, (A) if the portion of the award opportunity as to which no target benefit is specified is a financial award opportunity, then the target benefit for such portion shall be 66 2/3% of the maximum award opportunity for such portion, and (B) if the portion of the award opportunity as to which no target benefit is specified is a management objective or "MBO" award opportunity, then the target benefit for such portion shall be 75% of the maximum award opportunity for such portion; and further provided, that the Executive's total target benefit or benefits will equal the sum of the separate portions of the award opportunity as hereinabove determined; and (iii) a lump sum cash amount equal to the product of the Executive's total target benefit or benefits (as described at paragraph (ii) above, but determined solely by reference to the annual bonus or incentive plan or plans in which the Executive was participating for the period including the date of termination) times a fraction, the numerator of which is the number of days elapsed in such bonus or incentive period prior to the date of termination, and the denominator of which is three hundred sixty-five (365). In addition, upon termination of employment Eastern 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 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 Eastern then in effect, Eastern shall provide for substantially equivalent alternative coverage and benefits for the Executive and the Executive's family. Notwithstanding the foregoing, Eastern shall not be obligated to provide a benefit or coverage under the preceding provisions of 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. Immediately following the termination of the benefits provided under this Section 9(b) whenever occurring (or at any earlier time subsequent to the termination of employment giving rise to such benefits), Eastern shall provide or cause to be provided to the Executive and the Executive's family retiree health, dental, life and other retiree benefits, in each case not less favorable (and on terms not less favorable) to the Executive and the Executive's family than those available to eligible retirees and their families under the retiree benefit program of similar type (for example, retiree medical benefits or retiree life insurance) as in effect (i) immediately prior to the date of the termination of the Executive's employment if immediately prior to that date the benefits available under that program to eligible retirees and their families were more favorable (and were made available on terms that were more favorable) than the benefits and terms, if any, available to eligible retirees and their families under that program as in effect immediately prior to the Effective Date, or (ii) in all other cases, the Effective Date; provided, that the Executive and the Executive's family shall be eligible for retiree benefits under this sentence only if the Executive would have been eligible to participate in the retiree program of similar type (as in effect immediately prior to the Effective Date or immediately prior to the termination of the Executive's employment, whichever provided for more liberal eligibility requirements) if (A) such program had continued unchanged and the Executive had continued in employment through the end of the benefits continuation period described in the first sentence of this Section 9(b) (determined without regard to any early termination of such period attributable to benefits made available by a subsequent employer), and (B) the Executive had then retired. For purposes of applying the immediately preceding sentence, any minimum age requirement applicable to the Executive for participation in a retiree benefit program of Eastern or its subsidiaries shall be deemed satisfied if, as of the end of the benefits continuation period described in the first sentence of this Section 9(b) (determined without regard to any early termination of such period attributable to benefits made available by a subsequent employer), the Executive is or would have been at least age 52. Nothing in this paragraph shall be construed as requiring Eastern to pay severance in addition to the payments and benefits otherwise provided for in this Agreement. For a period of twenty-four (24) months commencing with the month in which a termination described in (a)(1) or (a)(2) above shall have occurred, the Executive will have the continued use of the company provided vehicle used by the Executive at the time of his termination of employment. During such period, Eastern will provide insurance coverage for such vehicle but the Executive will be responsible, at his own expense, for all normal costs of operation and maintenance. At the end of such period, Eastern will afford the Executive the opportunity to purchase said vehicle at its "blue book" value, determined on the basis of the most recently issued list of such values. (c) If the Executive so requests in connection with a termination described in (a)(1) or (a)(2) above, Eastern will pay in accordance with prior practice the costs of an out-placement service used by the Executive as a result of such termination. 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 Eastern in writing, specifying the amount of Gross-Up Payment required and details as to the calculation thereof. Eastern 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 Eastern, 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 Eastern, and whose fees and disbursements shall be paid by Eastern. (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 Eastern 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, Eastern shall either pay the Gross-Up Payment or provide an opinion from Independent Tax Counsel to the Executive and Eastern 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 Eastern 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 Eastern 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 Eastern, 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 Eastern to pay a Gross-Up Payment, provided Eastern requests in writing that the Executive do so and provides an opinion from Independent Tax Counsel to the Executive and Eastern 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 Eastern in writing to do so at any time, in which case the Executive shall be entitled to receive from Eastern 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 Eastern, 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 Eastern acknowledges its liability under this Agreement in the event that the Internal Revenue Service or other tax authority prevails in the contest. Eastern 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, Eastern 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 Eastern. 11. SOURCE OF PAYMENTS. All payments provided for under this Agreement shall be paid or provided from the general assets of Eastern and its subsidiaries or affiliates (to the extent not provided by insurance). Eastern 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 Eastern's ability to establish or fund a so-called "rabbi trust" or similar arrangement to help Eastern 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 Eastern's liabilities hereunder or otherwise adversely affect the Executive. 12. LITIGATION EXPENSES. In the event of any litigation or other proceeding between 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), Eastern 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 Massachusetts law to the contrary, in no event shall the Executive be required to reimburse Eastern for any of the costs and expenses relating to such litigation or other proceeding. 13. INCOME TAX WITHHOLDING. 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. CONFIDENTIAL INFORMATION. The Executive agrees that, following any termination of his employment under this Agreement, 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 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; OTHER SEVERANCE BENEFITS. If the severance pay provisions of Section 5.1 and Section 5.3 of Eastern's Employee Salary and Benefits Protection Plan as amended and restated September 1, 1999 (the "COC Severance Plan") (as such provisions would have applied to the Executive had the Executive been eligible to participate in the COC Severance Plan) would have yielded a larger severance pay amount than that determined under paragraphs (i), (ii) and (iii) of Section 9(a) of this Agreement, the Executive shall be entitled under Section 9(a) hereof to such greater severance pay amount in lieu of the formula amounts determined under Section 9(a)(i), (ii) and (iii); provided, that such severance pay shall continue to be subject to the other terms of this Agreement. If the benefits continuation provisions of Section 5.2 of the COC Severance Plan (as such provisions would have applied to the Executive and the Executive's family had the Executive been eligible to participate in the COC Severance Plan) would have provided for continuation of benefits at least as good as those provided under this Agreement but for a longer period of time, the period described in Section 9(b) of this Agreement for the continuation of benefits shall be deemed modified to provide for such longer period of benefits continuation. Subject to the foregoing, this Agreement contains the entire understanding between Eastern and the Executive with respect to the subject matter hereof and supersedes any prior Change of Control or similar severance or salary continuation agreement, other than the Employment Agreement, between Eastern 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 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 hereunder. Upon such a consolidation, merger or transfer of assets and assumption, the term "Eastern", 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 under this Agreement shall survive the termination for any reason of this Agreement (whether such termination is by Eastern, 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 the Executive: Fred C. Raskin 1 Andover Country Club Lane Andover, MA 01810 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 and shall inure to the benefit of the Executive and Eastern 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 Commonwealth of Massachusetts, without giving effect to the choice of law provisions in effect in such State. 25. MISCELLANEOUS. 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 has caused this Agreement to be executed by its 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 /s/ Fred C. Raskin Fred C. Raskin - -------- 1 In the event of a Change of Control intended to be accounted for as a pooling of interests, the following changes would be made to this Section 8 if similar changes in Eastern's other Officer Change of Control Agreements were determined (by the independent accounting firm serving as Eastern's independent auditors prior to the Change of Control) to be required to preserve the availability of such accounting treatment: (i) the term "Effective Date" as used in this Section 8 would mean the date that precedes the Change of Control by six months, and (ii) the extended exercisability provisions of the third sentence of this Section 8 shall not apply; however, options held by the Executive prior to termination of employment under Section 7(b) or Section 7(c), if termination occurs after the Effective Date but before the Change of Control, would remain exercisable until thirty (30) days following the Change of Control (or, if later, until they would have been exercisable without regard to the provisions of this Section 8), subject to earlier expiration and an accelerated opportunity to exercise if the options are not assumed (and no replacement options are issued) in connection with the Change of Control. EX-10.11.3 5 COC AGREEMENT WITH WALTER J. FLAHERTY Officer Change of Control Agreement - Walter J. Flaherty AGREEMENT This Agreement by and between Eastern Enterprises, a Massachusetts business trust with its principal offices in Weston, Massachusetts ("Eastern"), and Walter J. Flaherty (the "Executive"), is entered into as of the 22nd day of September, 1999, and amends and supersedes in its entirety the agreement between the parties dated July 22, 1998: W I T N E S S E T H T H A T: WHEREAS the Executive is an executive employee of Eastern; and WHEREAS the Board of Trustees of Eastern (the "Board") has determined that it is in the best interests of Eastern, its shareholders and the Executive to assure continuity in the management of Eastern'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. Eastern 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 Eastern, 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 Eastern or its subsidiaries. No purported termination of Executive shall be deemed a termination for Cause unless the Board shall have made a determination that Cause exists nor unless, in the case of Cause asserted under clause (a)(ii) above, the 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 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. (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 Eastern's long term disability program. (e) "Effective Date" means the earlier of (i) the date on which Eastern enters into a definitive agreement, the transactions contemplated by which will, when consummated, constitute a Change of Control, or (ii) the date which precedes the Change of Control by six (6) months. (f) "Good Reason" means any of the following unless promptly, fully and retroactively corrected 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 Eastern. (g) "Protected Period" means the period beginning on the Effective Date and ending on the date which follows the related Change of Control by twenty-four (24) months. 3. POSITION AND RESPONSIBILITIES. During the period of employment hereunder, the Executive agrees to serve Eastern 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 Effective Date and shall continue for a period that ends on the last day of the Protected Period. (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 Eastern 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 to Eastern. 5. COMPENSATION AND BENEFITS. During the Executive's employment under this Agreement, Eastern shall pay, provide and make available the following: (a) Eastern 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 Eastern immediately prior to the Effective Date. (b) In addition to the salary payable under subsection (a) above, 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. Eastern 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 Eastern 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 Eastern for Cause (but only if such termination is accomplished in the manner specified in Section 2(a)); (b) by Eastern 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 Eastern 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 Eastern of the Executive's employment under this Agreement shall take effect only after thirty (30) days' prior written notice by Eastern to the Executive. 8. VESTING OF CERTAIN AWARDS AND BENEFITS.1 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 the 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 terminated or been terminated under Section 7(b) or Section 7(c) above on or after the Effective Date but before the related Change of Control, the immediately preceding sentence shall be applied by substituting the words "held by the Executive immediately prior to termination of employment" for the words "then held by the Executive". If the Executive's employment under this Agreement shall have terminated or been terminated under Section 7(b) or Section 7(c) above, all of the Executive's stock options (including replacement options, if any, issued in substitution for such stock options in connection with the Change in Control) held by the Executive immediately prior to such termination shall be exercisable for a period that ends not earlier than the earlier of (i) the date on which the option would have expired or terminated had the Executive continued in employment, and (ii) the date which follows the Change of Control by thirteen (13) months; provided, that clause (ii) of this sentence shall not operate to extend the period of exercisability for any stock option that is intended to be an "incentive stock option" within the meaning of Section 422 of the Code; and further provided, that if stock options are not assumed (and no replacement options are issued) in connection with the Change of Control, Eastern shall provide the Executive the opportunity to exercise all of the stock options then held by the Executive (taking into account the provisions of this sentence) 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 Eastern pursuant to Section 7(b) above, Eastern 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 Executive's total target benefit or benefits under the 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 total 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; provided, that for purposes of determining the Executive's target benefit for any portion of an award opportunity as to which no target amount is specified, (A) if the portion of the award opportunity as to which no target benefit is specified is a financial award opportunity, then the target benefit for such portion shall be 66 2/3% of the maximum award opportunity for such portion, and (B) if the portion of the award opportunity as to which no target benefit is specified is a management objective or "MBO" award opportunity, then the target benefit for such portion shall be 75% of the maximum award opportunity for such portion; and further provided, that the Executive's total target benefit or benefits will equal the sum of the separate portions of the award opportunity as hereinabove determined; and (iii) a lump sum cash amount equal to the product of the Executive's total target benefit or benefits (as described at paragraph (ii) above, but determined solely by reference to the annual bonus or incentive plan or plans in which the Executive was participating for the period including the date of termination) times a fraction, the numerator of which is the number of days elapsed in such bonus or incentive period prior to the date of termination, and the denominator of which is three hundred sixty-five (365). In addition, upon termination of employment Eastern 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 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 Eastern then in effect, Eastern shall provide for substantially equivalent alternative coverage and benefits for the Executive and the Executive's family. Notwithstanding the foregoing, Eastern shall not be obligated to provide a benefit or coverage under the preceding provisions of 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. Immediately following the termination of the benefits provided under this Section 9(b) whenever occurring (or at any earlier time subsequent to the termination of employment giving rise to such benefits), Eastern shall provide or cause to be provided to the Executive and the Executive's family retiree health, dental, life and other retiree benefits, in each case not less favorable (and on terms not less favorable) to the Executive and the Executive's family than those available to eligible retirees and their families under the retiree benefit program of similar type (for example, retiree medical benefits or retiree life insurance) as in effect (i) immediately prior to the date of the termination of the Executive's employment if immediately prior to that date the benefits available under that program to eligible retirees and their families were more favorable (and were made available on terms that were more favorable) than the benefits and terms, if any, available to eligible retirees and their families under that program as in effect immediately prior to the Effective Date, or (ii) in all other cases, the Effective Date; provided, that the Executive and the Executive's family shall be eligible for retiree benefits under this sentence only if the Executive would have been eligible to participate in the retiree program of similar type (as in effect immediately prior to the Effective Date or immediately prior to the termination of the Executive's employment, whichever provided for more liberal eligibility requirements) if (A) such program had continued unchanged and the Executive had continued in employment through the end of the benefits continuation period described in the first sentence of this Section 9(b) (determined without regard to any early termination of such period attributable to benefits made available by a subsequent employer), and (B) the Executive had then retired. For purposes of applying the immediately preceding sentence, any minimum age requirement applicable to the Executive for participation in a retiree benefit program of Eastern or its subsidiaries shall be deemed satisfied if, as of the end of the benefits continuation period described in the first sentence of this Section 9(b) (determined without regard to any early termination of such period attributable to benefits made available by a subsequent employer), the Executive is or would have been at least age 52. Nothing in this paragraph shall be construed as requiring Eastern to pay severance in addition to the payments and benefits otherwise provided for in this Agreement. (c) If the Executive so requests in connection with a termination described in (a)(1) or (a)(2) above, Eastern will pay in accordance with prior practice the costs of an out-placement service used by the Executive as a result of such termination. (d) Upon termination of the Executive's employment under this Agreement for any reason, the Executive shall have the right to purchase the automobile, if any, supplied to the Executive by Eastern or its subsidiaries in connection with the Executive's employment, or any automobile substituted therefor with the Executive's approval, at its "blue book" value. 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 Eastern in writing, specifying the amount of Gross-Up Payment required and details as to the calculation thereof. Eastern 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 Eastern, 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 Eastern, and whose fees and disbursements shall be paid by Eastern. (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 Eastern 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, Eastern shall either pay the Gross-Up Payment or provide an opinion from Independent Tax Counsel to the Executive and Eastern 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 Eastern 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 Eastern 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 Eastern, 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 Eastern to pay a Gross-Up Payment, provided Eastern requests in writing that the Executive do so and provides an opinion from Independent Tax Counsel to the Executive and Eastern 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 Eastern in writing to do so at any time, in which case the Executive shall be entitled to receive from Eastern 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 Eastern, 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 Eastern acknowledges its liability under this Agreement in the event that the Internal Revenue Service or other tax authority prevails in the contest. Eastern 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, Eastern 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 Eastern. 11. SOURCE OF PAYMENTS. All payments provided for under this Agreement shall be paid or provided from the general assets of Eastern and its subsidiaries or affiliates (to the extent not provided by insurance). Eastern 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 Eastern's ability to establish or fund a so-called "rabbi trust" or similar arrangement to help Eastern 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 Eastern's liabilities hereunder or otherwise adversely affect the Executive. 12. LITIGATION EXPENSES. In the event of any litigation or other proceeding between 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), Eastern 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 Massachusetts law to the contrary, in no event shall the Executive be required to reimburse Eastern for any of the costs and expenses relating to such litigation or other proceeding. 13. INCOME TAX WITHHOLDING. 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. CONFIDENTIAL INFORMATION. The Executive agrees that, following any termination of his employment under this Agreement, 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 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; OTHER SEVERANCE BENEFITS. If the severance pay provisions of Section 5.1 and Section 5.3 of Eastern's Employee Salary and Benefits Protection Plan as amended and restated September 1, 1999 (the "COC Severance Plan") (as such provisions would have applied to the Executive had the Executive been eligible to participate in the COC Severance Plan) would have yielded a larger severance pay amount than that determined under paragraphs (i), (ii) and (iii) of Section 9(a) of this Agreement, the Executive shall be entitled under Section 9(a) hereof to such greater severance pay amount in lieu of the formula amounts determined under Section 9(a)(i), (ii) and (iii); provided, that such severance pay shall continue to be subject to the other terms of this Agreement. If the benefits continuation provisions of Section 5.2 of the COC Severance Plan (as such provisions would have applied to the Executive and the Executive's family had the Executive been eligible to participate in the COC Severance Plan) would have provided for continuation of benefits at least as good as those provided under this Agreement but for a longer period of time, the period described in Section 9(b) of this Agreement for the continuation of benefits shall be deemed modified to provide for such longer period of benefits continuation. Subject to the foregoing, this Agreement contains the entire understanding between Eastern 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 Eastern 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 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 hereunder. Upon such a consolidation, merger or transfer of assets and assumption, the term "Eastern", 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 under this Agreement shall survive the termination for any reason of this Agreement (whether such termination is by Eastern, 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 the Executive: [Address] 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 and shall inure to the benefit of the Executive and Eastern 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 Commonwealth of Massachusetts, without giving effect to the choice of law provisions in effect in such State. 25. MISCELLANEOUS. 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 has caused this Agreement to be executed by its 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 /s/ Walter J. Flaherty Walter J. Flaherty - -------- 1 In the event of a Change of Control intended to be accounted for as a pooling of interests, the following changes would be made to this Section 8 if similar changes in Eastern's other Officer Change of Control Agreements were determined (by the independent accounting firm serving as Eastern's independent auditors prior to the Change of Control) to be required to preserve the availability of such accounting treatment: (i) the term "Effective Date" as used in this Section 8 would mean the date that precedes the Change of Control by six months, and (ii) the extended exercisability provisions of the third sentence of this Section 8 shall not apply; however, options held by the Executive prior to termination of employment under Section 7(b) or Section 7(c), if termination occurs after the Effective Date but before the Change of Control, would remain exercisable until thirty (30) days following the Change of Control (or, if later, until they would have been exercisable without regard to the provisions of this Section 8), subject to earlier expiration and an accelerated opportunity to exercise if the options are not assumed (and no replacement options are issued) in connection with the Change of Control. EX-10.11.4 6 COC AGREEMENT WITH L. WILLIAM LAW, JR. Officer Change of Control Agreement - L. William Law, Jr. AGREEMENT This Agreement by and between Eastern Enterprises, a Massachusetts business trust with its principal offices in Weston, Massachusetts ("Eastern"), and L. William Law, Jr. (the "Executive"), is entered into as of the 22nd day of September, 1999, and amends and supersedes in its entirety the agreement between the parties dated July 22, 1998: W I T N E S S E T H T H A T: WHEREAS the Executive is an executive employee of Eastern; and WHEREAS the Board of Trustees of Eastern (the "Board") has determined that it is in the best interests of Eastern, its shareholders and the Executive to assure continuity in the management of Eastern'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. Eastern 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 Eastern, 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 Eastern or its subsidiaries. No purported termination of Executive shall be deemed a termination for Cause unless the Board shall have made a determination that Cause exists nor unless, in the case of Cause asserted under clause (a)(ii) above, the 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 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. (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 Eastern's long term disability program. (e) "Effective Date" means the earlier of (i) the date on which Eastern enters into a definitive agreement, the transactions contemplated by which will, when consummated, constitute a Change of Control, or (ii) the date which precedes the Change of Control by six (6) months. (f) "Good Reason" means any of the following unless promptly, fully and retroactively corrected 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 Eastern. (g) "Protected Period" means the period beginning on the Effective Date and ending on the date which follows the related Change of Control by twenty-four (24) months. 3. POSITION AND RESPONSIBILITIES. During the period of employment hereunder, the Executive agrees to serve Eastern 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 Effective Date and shall continue for a period that ends on the last day of the Protected Period. (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 Eastern 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 to Eastern. 5. COMPENSATION AND BENEFITS. During the Executive's employment under this Agreement, Eastern shall pay, provide and make available the following: (a) Eastern 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 Eastern immediately prior to the Effective Date. (b) In addition to the salary payable under subsection (a) above, 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. Eastern 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 Eastern 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 Eastern for Cause (but only if such termination is accomplished in the manner specified in Section 2(a)); (b) by Eastern 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 Eastern 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 Eastern of the Executive's employment under this Agreement shall take effect only after thirty (30) days' prior written notice by Eastern to the Executive. 8. VESTING OF CERTAIN AWARDS AND BENEFITS.1 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 the 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 terminated or been terminated under Section 7(b) or Section 7(c) above on or after the Effective Date but before the related Change of Control, the immediately preceding sentence shall be applied by substituting the words "held by the Executive immediately prior to termination of employment" for the words "then held by the Executive". If the Executive's employment under this Agreement shall have terminated or been terminated under Section 7(b) or Section 7(c) above, all of the Executive's stock options (including replacement options, if any, issued in substitution for such stock options in connection with the Change in Control) held by the Executive immediately prior to such termination shall be exercisable for a period that ends not earlier than the earlier of (i) the date on which the option would have expired or terminated had the Executive continued in employment, and (ii) the date which follows the Change of Control by thirteen (13) months; provided, that clause (ii) of this sentence shall not operate to extend the period of exercisability for any stock option that is intended to be an "incentive stock option" within the meaning of Section 422 of the Code; and further provided, that if stock options are not assumed (and no replacement options are issued) in connection with the Change of Control, Eastern shall provide the Executive the opportunity to exercise all of the stock options then held by the Executive (taking into account the provisions of this sentence) 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 Eastern pursuant to Section 7(b) above, Eastern 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 Executive's total target benefit or benefits under the 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 total 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; provided, that for purposes of determining the Executive's target benefit for any portion of an award opportunity as to which no target amount is specified, (A) if the portion of the award opportunity as to which no target benefit is specified is a financial award opportunity, then the target benefit for such portion shall be 66 2/3% of the maximum award opportunity for such portion, and (B) if the portion of the award opportunity as to which no target benefit is specified is a management objective or "MBO" award opportunity, then the target benefit for such portion shall be 75% of the maximum award opportunity for such portion; and further provided, that the Executive's total target benefit or benefits will equal the sum of the separate portions of the award opportunity as hereinabove determined; and (iii) a lump sum cash amount equal to the product of the Executive's total target benefit or benefits (as described at paragraph (ii) above, but determined solely by reference to the annual bonus or incentive plan or plans in which the Executive was participating for the period including the date of termination) times a fraction, the numerator of which is the number of days elapsed in such bonus or incentive period prior to the date of termination, and the denominator of which is three hundred sixty-five (365). In addition, upon termination of employment Eastern 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 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 Eastern then in effect, Eastern shall provide for substantially equivalent alternative coverage and benefits for the Executive and the Executive's family. Notwithstanding the foregoing, Eastern shall not be obligated to provide a benefit or coverage under the preceding provisions of 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. Immediately following the termination of the benefits provided under this Section 9(b) whenever occurring (or at any earlier time subsequent to the termination of employment giving rise to such benefits), Eastern shall provide or cause to be provided to the Executive and the Executive's family retiree health, dental, life and other retiree benefits, in each case not less favorable (and on terms not less favorable) to the Executive and the Executive's family than those available to eligible retirees and their families under the retiree benefit program of similar type (for example, retiree medical benefits or retiree life insurance) as in effect (i) immediately prior to the date of the termination of the Executive's employment if immediately prior to that date the benefits available under that program to eligible retirees and their families were more favorable (and were made available on terms that were more favorable) than the benefits and terms, if any, available to eligible retirees and their families under that program as in effect immediately prior to the Effective Date, or (ii) in all other cases, the Effective Date; provided, that the Executive and the Executive's family shall be eligible for retiree benefits under this sentence only if the Executive would have been eligible to participate in the retiree program of similar type (as in effect immediately prior to the Effective Date or immediately prior to the termination of the Executive's employment, whichever provided for more liberal eligibility requirements) if (A) such program had continued unchanged and the Executive had continued in employment through the end of the benefits continuation period described in the first sentence of this Section 9(b) (determined without regard to any early termination of such period attributable to benefits made available by a subsequent employer), and (B) the Executive had then retired. For purposes of applying the immediately preceding sentence, any minimum age requirement applicable to the Executive for participation in a retiree benefit program of Eastern or its subsidiaries shall be deemed satisfied if, as of the end of the benefits continuation period described in the first sentence of this Section 9(b) (determined without regard to any early termination of such period attributable to benefits made available by a subsequent employer), the Executive is or would have been at least age 52. Nothing in this paragraph shall be construed as requiring Eastern to pay severance in addition to the payments and benefits otherwise provided for in this Agreement. (c) If the Executive so requests in connection with a termination described in (a)(1) or (a)(2) above, Eastern will pay in accordance with prior practice the costs of an out-placement service used by the Executive as a result of such termination. (d) Upon termination of the Executive's employment under this Agreement for any reason, the Executive shall have the right to purchase the automobile, if any, supplied to the Executive by Eastern or its subsidiaries in connection with the Executive's employment, or any automobile substituted therefor with the Executive's approval, at its "blue book" value. 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 Eastern in writing, specifying the amount of Gross-Up Payment required and details as to the calculation thereof. Eastern 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 Eastern, 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 Eastern, and whose fees and disbursements shall be paid by Eastern. (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 Eastern 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, Eastern shall either pay the Gross-Up Payment or provide an opinion from Independent Tax Counsel to the Executive and Eastern 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 Eastern 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 Eastern 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 Eastern, 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 Eastern to pay a Gross-Up Payment, provided Eastern requests in writing that the Executive do so and provides an opinion from Independent Tax Counsel to the Executive and Eastern 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 Eastern in writing to do so at any time, in which case the Executive shall be entitled to receive from Eastern 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 Eastern, 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 Eastern acknowledges its liability under this Agreement in the event that the Internal Revenue Service or other tax authority prevails in the contest. Eastern 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, Eastern 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 Eastern. 11. SOURCE OF PAYMENTS. All payments provided for under this Agreement shall be paid or provided from the general assets of Eastern and its subsidiaries or affiliates (to the extent not provided by insurance). Eastern 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 Eastern's ability to establish or fund a so-called "rabbi trust" or similar arrangement to help Eastern 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 Eastern's liabilities hereunder or otherwise adversely affect the Executive. 12. LITIGATION EXPENSES. In the event of any litigation or other proceeding between 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), Eastern 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 Massachusetts law to the contrary, in no event shall the Executive be required to reimburse Eastern for any of the costs and expenses relating to such litigation or other proceeding. 13. INCOME TAX WITHHOLDING. 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. CONFIDENTIAL INFORMATION. The Executive agrees that, following any termination of his employment under this Agreement, 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 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; OTHER SEVERANCE BENEFITS. If the severance pay provisions of Section 5.1 and Section 5.3 of Eastern's Employee Salary and Benefits Protection Plan as amended and restated September 1, 1999 (the "COC Severance Plan") (as such provisions would have applied to the Executive had the Executive been eligible to participate in the COC Severance Plan) would have yielded a larger severance pay amount than that determined under paragraphs (i), (ii) and (iii) of Section 9(a) of this Agreement, the Executive shall be entitled under Section 9(a) hereof to such greater severance pay amount in lieu of the formula amounts determined under Section 9(a)(i), (ii) and (iii); provided, that such severance pay shall continue to be subject to the other terms of this Agreement. If the benefits continuation provisions of Section 5.2 of the COC Severance Plan (as such provisions would have applied to the Executive and the Executive's family had the Executive been eligible to participate in the COC Severance Plan) would have provided for continuation of benefits at least as good as those provided under this Agreement but for a longer period of time, the period described in Section 9(b) of this Agreement for the continuation of benefits shall be deemed modified to provide for such longer period of benefits continuation. Subject to the foregoing, this Agreement contains the entire understanding between Eastern 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 Eastern 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 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 hereunder. Upon such a consolidation, merger or transfer of assets and assumption, the term "Eastern", 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 under this Agreement shall survive the termination for any reason of this Agreement (whether such termination is by Eastern, 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 the Executive: [Address] 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 and shall inure to the benefit of the Executive and Eastern 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 Commonwealth of Massachusetts, without giving effect to the choice of law provisions in effect in such State. 25. MISCELLANEOUS. 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 has caused this Agreement to be executed by its 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 /s/ L. William Law, Jr. - -------- 1 In the event of a Change of Control intended to be accounted for as a pooling of interests, the following changes would be made to this Section 8 if similar changes in Eastern's other Officer Change of Control Agreements were determined (by the independent accounting firm serving as Eastern's independent auditors prior to the Change of Control) to be required to preserve the availability of such accounting treatment: (i) the term "Effective Date" as used in this Section 8 would mean the date that precedes the Change of Control by six months, and (ii) the extended exercisability provisions of the third sentence of this Section 8 shall not apply; however, options held by the Executive prior to termination of employment under Section 7(b) or Section 7(c), if termination occurs after the Effective Date but before the Change of Control, would remain exercisable until thirty (30) days following the Change of Control (or, if later, until they would have been exercisable without regard to the provisions of this Section 8), subject to earlier expiration and an accelerated opportunity to exercise if the options are not assumed (and no replacement options are issued) in connection with the Change of Control. EX-10.11.5 7 COC AGREEMENT WITH CHESTER R. MESSER Officer Change of Control Agreement - Chester R. Messer AGREEMENT This Agreement by and between Eastern Enterprises, a Massachusetts business trust with its principal offices in Weston, Massachusetts ("Eastern"), Boston Gas Company, a corporation with its principal offices in Boston, Massachusetts ("Boston Gas") and Chester R. Messer (the "Executive"), is entered into as of the 22nd day of September, 1999, and amends and supersedes in its entirety the agreement between the parties dated July 22, 1998. W I T N E S S E T H T H A T: WHEREAS the Executive is an executive employee of Boston Gas; and WHEREAS the Board of Trustees of Eastern (the "Board") and the Board of Directors of Boston Gas (the "Boston Gas Board") have determined that it is in the best interests of Eastern, Boston Gas, Eastern's shareholders and the Executive to assure continuity in the management of Boston Gas'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. Boston Gas 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 Boston Gas, 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 Boston Gas, Eastern or Eastern's subsidiaries. No purported termination of Executive shall be deemed a termination for Cause unless the Boston Gas Board shall have made a determination that Cause exists nor unless, in the case of Cause asserted under clause (a)(ii) above, the Boston Gas 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 Boston Gas 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 voting securities of Boston Gas or Boston Gas 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 Boston Gas. (e) "Effective Date" means the earlier of (i) the date on which Eastern enters into a definitive agreement, the transactions contemplated by which will, when consummated, constitute a Change of Control, or (ii) the date which precedes the Change of Control by six (6) months. (f) "Good Reason" means any of the following unless promptly, fully and retroactively corrected by Boston Gas (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 Boston Gas or Eastern. (g) "Protected Period" means the period beginning on the Effective Date and ending on the date which follows the related Change of Control by twenty-four (24) months. 3. POSITION AND RESPONSIBILITIES. During the period of employment hereunder, the Executive agrees to serve Boston Gas 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 Effective Date and shall continue for a period that ends on the last day of the Protected Period. (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 Boston Gas 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, Boston Gas (or, to the extent provided below, Eastern) shall pay, provide and make available the following: (a) Boston Gas 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 Boston Gas immediately prior to the Effective Date. (b) In addition to the salary payable under subsection (a) above, Boston Gas 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. Boston Gas 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 Boston Gas 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 Boston Gas for Cause (but only if such termination is accomplished in the manner specified in Section 2(a)); (b) by Boston Gas 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 Boston Gas 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 Boston Gas of the Executive's employment under this Agreement shall take effect only after thirty (30) days' prior written notice by Boston Gas to the Executive. 8. VESTING OF CERTAIN AWARDS AND BENEFITS.1 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 the 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 terminated or been terminated under Section 7(b) or Section 7(c) above on or after the Effective Date but before the related Change of Control, the immediately preceding sentence shall be applied by substituting the words "held by the Executive immediately prior to termination of employment" for the words "then held by the Executive". If the Executive's employment under this Agreement shall have terminated or been terminated under Section 7(b) or Section 7(c) above, all of the Executive's stock options (including replacement options, if any, issued in substitution for such stock options in connection with the Change in Control) held by the Executive immediately prior to such termination shall be exercisable for a period that ends not earlier than the earlier of (i) the date on which the option would have expired or terminated had the Executive continued in employment, and (ii) the date which follows the Change of Control by thirteen (13) months; provided, that clause (ii) of this sentence shall not operate to extend the period of exercisability for any stock option that is intended to be an "incentive stock option" within the meaning of Section 422 of the Code; and further provided, that if stock options are not assumed (and no replacement options are issued) in connection with the Change of Control, Eastern shall provide the Executive the opportunity to exercise all of the stock options then held by the Executive (taking into account the provisions of this sentence) 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 Boston Gas pursuant to Section 7(b) above, Boston Gas 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 Executive's total target benefit or benefits under the 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 total 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; provided, that for purposes of determining the Executive's target benefit for any portion of an award opportunity as to which no target amount is specified, (A) if the portion of the award opportunity as to which no target benefit is specified is a financial award opportunity, then the target benefit for such portion shall be 66 2/3% of the maximum award opportunity for such portion, and (B) if the portion of the award opportunity as to which no target benefit is specified is a management objective or "MBO" award opportunity, then the target benefit for such portion shall be 75% of the maximum award opportunity for such portion; and further provided, that the Executive's total target benefit or benefits will equal the sum of the separate portions of the award opportunity as hereinabove determined; and (iii) a lump sum cash amount equal to the product of the Executive's total target benefit or benefits (as described at paragraph (ii) above, but determined solely by reference to the annual bonus or incentive plan or plans in which the Executive was participating for the period including the date of termination) times a fraction, the numerator of which is the number of days elapsed in such bonus or incentive period prior to the date of termination, and the denominator of which is three hundred sixty-five (365). In addition, upon termination of employment Boston Gas 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 Boston Gas'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 Boston Gas or Eastern then in effect, Boston Gas shall provide for substantially equivalent alternative coverage and benefits for the Executive and the Executive's family. Notwithstanding the foregoing, Boston Gas shall not be obligated to provide a benefit or coverage under the preceding provision of 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. Immediately following the termination of the benefits provided under this Section 9(b) whenever occurring (or at any earlier time subsequent to the termination of employment giving rise to such benefits), Boston Gas shall provide or cause to be provided to the Executive and the Executive's family retiree health, dental, life and other retiree benefits, in each case not less favorable (and on terms not less favorable) to the Executive and the Executive's family than those available to eligible retirees and their families under the retiree benefit program of similar type (for example, retiree medical benefits or retiree life insurance) as in effect (i) immediately prior to the date of the termination of the Executive's employment if immediately prior to that date the benefits available under that program to eligible retirees and their families were more favorable (and were made available on terms that were more favorable) than the benefits and terms, if any, available to eligible retirees and their families under that program as in effect immediately prior to the Effective Date, or (ii) in all other cases, the Effective Date; provided, that the Executive and the Executive's family shall be eligible for retiree benefits under this sentence only if the Executive would have been eligible to participate in the retiree program of similar type (as in effect immediately prior to the Effective Date or immediately prior to the termination of the Executive's employment, whichever provided for more liberal eligibility requirements) if (A) such program had continued unchanged and the Executive had continued in employment through the end of the benefits continuation period described in the first sentence of this Section 9(b) (determined without regard to any early termination of such period attributable to benefits made available by a subsequent employer), and (B) the Executive had then retired. For purposes of applying the immediately preceding sentence, any minimum age requirement applicable to the Executive for participation in a retiree benefit program of Eastern or its subsidiaries shall be deemed satisfied if, as of the end of the benefits continuation period described in the first sentence of this Section 9(b) (determined without regard to any early termination of such period attributable to benefits made available by a subsequent employer), the Executive is or would have been at least age 52. Nothing in this paragraph shall be construed as requiring Boston Gas or Eastern to pay severance in addition to the payments and benefits otherwise provided for in this Agreement. (c) If the Executive so requests in connection with a termination described in (a)(1) or (a)(2) above, Boston Gas will pay in accordance with prior practice the costs of an out-placement service used by the Executive as a result of such termination. (d) Upon termination of the Executive's employment under this Agreement for any reason, the Executive shall have the right to purchase the automobile, if any, supplied to the Executive by Eastern or its subsidiaries in connection with the Executive's employment, or any automobile substituted therefor with the Executive's approval, at its "blue book" value. 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 Boston Gas in writing, specifying the amount of Gross-Up Payment required and details as to the calculation thereof. Boston Gas 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 Boston Gas, 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 Boston Gas, and whose fees and disbursements shall be paid by Boston Gas. (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 Boston Gas 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, Boston Gas shall either pay the Gross-Up Payment or provide an opinion from Independent Tax Counsel to the Executive and Boston Gas 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 Boston Gas 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 Boston Gas 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 Boston Gas, 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 Boston Gas to pay a Gross-Up Payment, provided Boston Gas requests in writing that the Executive do so and provides an opinion from Independent Tax Counsel to the Executive and Boston Gas 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 Boston Gas in writing to do so at any time, in which case the Executive shall be entitled to receive from Boston Gas 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 Boston Gas, 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 Boston Gas acknowledges its liability under this Agreement in the event that the Internal Revenue Service or other tax authority prevails in the contest. Boston Gas 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, Boston Gas 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 Boston Gas. 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 Boston Gas and its subsidiaries or affiliates (to the extent not provided by insurance). Boston Gas 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 Boston Gas's ability to establish or fund a so-called "rabbi trust" or similar arrangement to help Boston Gas 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 Boston Gas's liabilities hereunder or otherwise adversely affect the Executive. 12. LITIGATION EXPENSES. In the event of any litigation or other proceeding between Boston Gas 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), Boston Gas 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 Massachusetts law to the contrary, in no event shall the Executive be required to reimburse Boston Gas or Eastern for any of the costs and expenses relating to such litigation or other proceeding. 13. INCOME TAX WITHHOLDING. Boston Gas 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. CONFIDENTIAL INFORMATION. The Executive agrees that, following any termination of his employment under this Agreement, 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 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; OTHER SEVERANCE BENEFITS. If the severance pay provisions of Section 5.1 and Section 5.3 of Eastern's Employee Salary and Benefits Protection Plan as amended and restated September 1, 1999 (the "COC Severance Plan") (as such provisions would have applied to the Executive had the Executive been eligible to participate in the COC Severance Plan) would have yielded a larger severance pay amount than that determined under paragraphs (i), (ii) and (iii) of Section 9(a) of this Agreement, the Executive shall be entitled under Section 9(a) hereof to such greater severance pay amount in lieu of the formula amounts determined under Section 9(a)(i), (ii) and (iii); provided, that such severance pay shall continue to be subject to the other terms of this Agreement. If the benefits continuation provisions of Section 5.2 of the COC Severance Plan (as such provisions would have applied to the Executive and the Executive's family had the Executive been eligible to participate in the COC Severance Plan) would have provided for continuation of benefits at least as good as those provided under this Agreement but for a longer period of time, the period described in Section 9(b) of this Agreement for the continuation of benefits shall be deemed modified to provide for such longer period of benefits continuation. Subject to the foregoing, this Agreement contains the entire understanding between Eastern, Boston Gas 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 Boston Gas or Eastern (including any of Eastern's subsidiaries other than Boston Gas) 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 Boston Gas 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 Boston Gas, respectfully, hereunder. Upon such a consolidation, merger or transfer of assets and assumption, involving Eastern or Boston Gas, the terms "Eastern" and "Boston Gas", 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 Boston Gas under this Agreement shall survive the termination for any reason of this Agreement (whether such termination is by Eastern, by Boston Gas, 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 Boston Gas: Boston Gas Company One Beacon Street Boston, MA 02108 Attention: Legal Department (with a copy to Eastern) (c) To the Executive: [Address] 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 Boston Gas 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 Commonwealth of Massachusetts, 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 Boston Gas 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 BOSTON GAS COMPANY By: /s/ Jean A. Scholtens /s/ Chester R. Messer - -------- 1 In the event of a Change of Control intended to be accounted for as a pooling of interests, the following changes would be made to this Section 8 if similar changes in Eastern's other Officer Change of Control Agreements were determined (by the independent accounting firm serving as Eastern's independent auditors prior to the Change of Control) to be required to preserve the availability of such accounting treatment: (i) the term "Effective Date" as used in this Section 8 would mean the date that precedes the Change of Control by six months, and (ii) the extended exercisability provisions of the third sentence of this Section 8 shall not apply; however, options held by the Executive prior to termination of employment under Section 7(b) or Section 7(c), if termination occurs after the Effective Date but before the Change of Control, would remain exercisable until thirty (30) days following the Change of Control (or, if later, until they would have been exercisable without regard to the provisions of this Section 8), subject to earlier expiration and an accelerated opportunity to exercise if the options are not assumed (and no replacement options are issued) in connection with the Change of Control. EX-10.11.6 8 COC AGREEMENT WITH J. MARK COOK Officer Change of Control Agreement Jonathan M. Cook 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 22nd day of September, 1999, and amends and supersedes in its entirety the agreement between the parties dated November 16, 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 voting securities 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" means the earlier of (i) the date on which Eastern enters into a definitive agreement, the transactions contemplated by which will, when consummated, constitute a Change of Control, or (ii) the date which precedes the Change of Control by six (6) months. (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. (g) "Protected Period" means the period beginning on the Effective Date and ending on the date which follows the related Change of Control by twenty-four (24) months. 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 Effective Date and shall continue for a period that ends on the last day of the Protected Period. (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.1 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 the 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 terminated or been terminated under Section 7(b) or Section 7(c) above on or after the Effective Date but before the related Change of Control, the immediately preceding sentence shall be applied by substituting the words "held by the Executive immediately prior to termination of employment" for the words "then held by the Executive". If the Executive's employment under this Agreement shall have terminated or been terminated under Section 7(b) or Section 7(c) above, all of the Executive's stock options (including replacement options, if any, issued in substitution for such stock options in connection with the Change in Control) held by the Executive immediately prior to such termination shall be exercisable for a period that ends not earlier than the earlier of (i) the date on which the option would have expired or terminated had the Executive continued in employment, and (ii) the date which follows the Change of Control by thirteen (13) months; provided, that clause (ii) of this sentence shall not operate to extend the period of exercisability for any stock option that is intended to be an "incentive stock option" within the meaning of Section 422 of the Code; and further provided, that if stock options are not assumed (and no replacement options are issued) in connection with the Change of Control, Eastern shall provide the Executive the opportunity to exercise all of the stock options then held by the Executive (taking into account the provisions of this sentence) 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 Executive's total target benefit or benefits under the 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 total 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; provided, that for purposes of determining the Executive's target benefit for any portion of an award opportunity as to which no target amount is specified, (A) if the portion of the award opportunity as to which no target benefit is specified is a financial award opportunity, then the target benefit for such portion shall be 66 2/3% of the maximum award opportunity for such portion, and (B) if the portion of the award opportunity as to which no target benefit is specified is a management objective or "MBO" award opportunity, then the target benefit for such portion shall be 75% of the maximum award opportunity for such portion; and further provided, that the Executive's total target benefit or benefits will equal the sum of the separate portions of the award opportunity as hereinabove determined; and (iii) a lump sum cash amount equal to the product of the Executive's total target benefit or benefits (as described at paragraph (ii) above, but determined solely by reference to the annual bonus or incentive plan or plans in which the Executive was participating for the period including the date of termination) times a fraction, the numerator of which is the number of days elapsed in such bonus or incentive period 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 the preceding provisions of 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. Immediately following the termination of the benefits provided under this Section 9(b) whenever occurring (or at any earlier time subsequent to the termination of employment giving rise to such benefits), Midland shall provide or cause to be provided to the Executive and the Executive's family retiree health, dental, life and other retiree benefits, in each case not less favorable (and on terms not less favorable) to the Executive and the Executive's family than those available to eligible retirees and their families under the retiree benefit program of similar type (for example, retiree medical benefits or retiree life insurance) as in effect (i) immediately prior to the date of the termination of the Executive's employment if immediately prior to that date the benefits available under that program to eligible retirees and their families were more favorable (and were made available on terms that were more favorable) than the benefits and terms, if any, available to eligible retirees and their families under that program as in effect immediately prior to the Effective Date, or (ii) in all other cases, the Effective Date; provided, that the Executive and the Executive's family shall be eligible for retiree benefits under this sentence only if the Executive would have been eligible to participate in the retiree program of similar type (as in effect immediately prior to the Effective Date or immediately prior to the termination of the Executive's employment, whichever provided for more liberal eligibility requirements) if (A) such program had continued unchanged and the Executive had continued in employment through the end of the benefits continuation period described in the first sentence of this Section 9(b) (determined without regard to any early termination of such period attributable to benefits made available by a subsequent employer), and (B) the Executive had then retired. For purposes of applying the immediately preceding sentence, any minimum age requirement applicable to the Executive for participation in a retiree benefit program of Eastern or its subsidiaries shall be deemed satisfied if, as of the end of the benefits continuation period described in the first sentence of this Section 9(b) (determined without regard to any early termination of such period attributable to benefits made available by a subsequent employer), the Executive is or would have been at least age 52. 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. (c) If the Executive so requests in connection with a termination described in (a)(1) or (a)(2) above, Midland will pay in accordance with prior practice the costs of an out-placement service used by the Executive as a result of such termination. (d) Upon termination of the Executive's employment under this Agreement for any reason, the Executive shall have the right to purchase the automobile, if any, supplied to the Executive by Eastern or its subsidiaries in connection with the Executive's employment, or any automobile substituted therefor with the Executive's approval, at its "blue book" value. 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. CONFIDENTIAL INFORMATION. The Executive agrees that, following any termination of his employment under this Agreement, 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 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; OTHER SEVERANCE BENEFITS. If the severance pay provisions of Section 5.1 and Section 5.3 of Eastern's Employee Salary and Benefits Protection Plan as amended and restated September 1, 1999 (the "COC Severance Plan") (as such provisions would have applied to the Executive had the Executive been eligible to participate in the COC Severance Plan) would have yielded a larger severance pay amount than that determined under paragraphs (i), (ii) and (iii) of Section 9(a) of this Agreement, the Executive shall be entitled under Section 9(a) hereof to such greater severance pay amount in lieu of the formula amounts determined under Section 9(a)(i), (ii) and (iii); provided, that such severance pay shall continue to be subject to the other terms of this Agreement. If the benefits continuation provisions of Section 5.2 of the COC Severance Plan (as such provisions would have applied to the Executive and the Executive's family had the Executive been eligible to participate in the COC Severance Plan) would have provided for continuation of benefits at least as good as those provided under this Agreement but for a longer period of time, the period described in Section 9(b) of this Agreement for the continuation of benefits shall be deemed modified to provide for such longer period of benefits continuation. Subject to the foregoing, 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: [Address] 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 MIDLAND ENTERPRISES, INC. By: /s/ Peter Z. Hubbard /s/ Jonathan M. Cook Jonathan M. Cook - -------- 1 In the event of a Change of Control intended to be accounted for as a pooling of interests, the following changes would be made to this Section 8 if similar changes in Eastern's other Officer Change of Control Agreements were determined (by the independent accounting firm serving as Eastern's independent auditors prior to the Change of Control) to be required to preserve the availability of such accounting treatment: (i) the term "Effective Date" as used in this Section 8 would mean the date that precedes the Change of Control by six months, and (ii) the extended exercisability provisions of the third sentence of this Section 8 shall not apply; however, options held by the Executive prior to termination of employment under Section 7(b) or Section 7(c), if termination occurs after the Effective Date but before the Change of Control, would remain exercisable until thirty (30) days following the Change of Control (or, if later, until they would have been exercisable without regard to the provisions of this Section 8), subject to earlier expiration and an accelerated opportunity to exercise if the options are not assumed (and no replacement options are issued) in connection with the Change of Control. EX-10.23.1 9 RESTRICTED STOCK PLAN FOR NON-EMPLOYEE TRUSTEES EASTERN ENTERPRISES Restricted Stock Plan for Non-Employee Trustees Amendment Pursuant to Section 9 of the Eastern Enterprises Restricted Stock Plan for Non-Employee Trustees (the "Plan), the Plan is hereby amended as follows: 1. The first sentence of Section 6(c) is amended by inserting the phrase "or Section 11" after the phrase "Section 6(d)" therein. 2. The first sentence of Section 6(e) is amended to provide as follows: "In the event that a Participant resigns from the Board of Trustees or declines to stand for re-election to the Board of Trustees, not due to the Participant's Disability (as hereinafter defined) and not in accordance with a retirement policy of the Board of Trustees then in effect, and except as provided in Section 11, the shares of Common Stock awarded to such Participant under the Plan shall be immediately forfeited." 3. Section 6(f) is amended by adding the phrase "Except as provided in Section 11," at the beginning thereof, and changing the word "Any" to "any" following such phrase. 4. A new Section 11 is added following current Section 10 of the Plan, providing as follows: "11. Effect of a Change of Control Notwithstanding any other provision of this Plan to the contrary, in the event of a Change of Control (as hereinafter defined) of the Association all outstanding shares of restricted Common Stock awarded to Participants under this Plan shall become free of the transfer restrictions and forfeiture provisions of the Plan, and certificates representing such shares will thereupon be delivered to such Participants. A "Change of Control" will be deemed to have occurred if, after January 1, 1999, any of the following occurs: (a) 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 the Association, 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 the Association; or (b) there is consummated a merger or consolidation ("merger") involving the Association and immediately after such merger the beneficial owners immediately prior to such merger of the then outstanding voting securities of the Association 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 (c) 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 the Association 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 the Association; or (d) within any two-year period, individuals who at the beginning of such period constituted the Board of Trustees of the Association 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 the Association 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." IN WITNESS WHEREOF, Eastern Enterprises has caused this Amendment to be executed by its duly authorized officer this 22nd day of September, 1999. EASTERN ENTERPRISES /s/ J. Atwood Ives By: J. Atwood Ives - ----------------------------- Approved by the Compensation Committee on September 22, 1999 Approved by the Board of Trustees on September 22, 1999 EX-27.1 10 ARTICLE 5
5 This schedule contains summary financial information extracted from the consolidated statement of earnings and the consolidated balance sheets and is qualified in its entirety by reference to such financial statements. 1,000 U.S. DOLLARS 9-MOS DEC-31-1999 JAN-01-1999 SEP-30-1999 1 29,380 1,338 105,474 17,554 76,340 223,886 2,179,169 910,068 1,908,495 208,440 516,683 27,021 26,447 0 708,738 1,908,495 452,441 660,327 340,161 538,749 45,881 4,281 27,062 44,354 17,449 26,905 0 0 0 26,905 1.16 1.16 EPS - Primary is EPS Basic per SFAS 128 EPS - Fully Diluted is EPS - Diluted per SFAS 128
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