Exhibit 10.13(d)
CHANGE IN CONTROL TERMINATION
AGREEMENT
This Change in Control Termination Agreement
(the “Agreement”) is entered into as of January 1,
2009, between Middlesex Water Company, a New Jersey corporation,
with its principal place of business located at 1500 Ronson Road,
P.O. Box 1500, Iselin, New Jersey 08830-0452, (the
“Company”), and
Richard M.
Risoldi, residing at 11 Lohli Drive, Hamilton Square, New Jersey
08690, (referred to as “You” in this
Agreement).
Recitals
A. The
Company considers it essential to the best interests of its
stockholders to foster the continuous employment of key management
personnel. In this connection, the Board of Directors of the
Company (the “Board”) recognizes that, as is the case
with many publicly held Companies, the possibility of a Change in
Control may exist. This possibility, and the uncertainty
and questions that it may raise among management, may result in the
departure or distraction of management personnel to the detriment
of the Company and its stockholders.
B. The
Board has determined that appropriate steps should be taken to
reinforce and encourage the continued attention and dedication of
members of the Company’s management, including You, to the
assigned duties without distraction in the face of potentially
disturbing circumstances arising from the possibility of a Change
in Control of the Company.
C. To
induce You to remain in the employ of the Company, and in
consideration of your agreement set forth below, the Company agrees
that You shall receive the severance benefits set forth in this
Agreement in the event your employment with the Company is
terminated by the Company, or is terminated by You for “Good
Reason” as defined herein in connection with a “Change
in Control of the Company” (as defined in Section 2 below)
under the circumstances described below. This Agreement
is meant to supersede any other specific written agreements that
may have been entered into between yourself and the Company
concerning termination of employment.
Therefore, in consideration of your continued
employment and the parties’ agreement to be bound by the
terms contained in this Agreement, the parties agree as
follows:
1. Term of
Agreement . This Agreement shall commence as of
January 1, 2009 and shall continue in effect through December 31,
2009. However, commencing on December 31, 2009, and each
December 31 afterwards,
the term of
this Agreement shall automatically be extended for one (1)
additional year unless, no later than the preceding November 1st,
the Company shall have given notice that it does not wish to extend
this Agreement. Notwithstanding the foregoing, if a Change in
Control of the Company shall be proposed to occur or have occurred
during the original or any extended term of this Agreement, this
Agreement shall continue in effect until your termination of
employment with the Company or its successor or when all amounts
due under this Agreement following a termination have been paid,
whichever is later.
2. Change In Control
. No benefits shall be payable under this Agreement
unless there shall have been a Change in Control of the Company, as
set forth herein. For purposes of this Agreement, a
“Change in Control” of the Company shall be deemed to
occur if any party or group acquires beneficial ownership of 20
percent or more of the voting shares of the Company; or if
shareholder approval is obtained for a transaction involving the
acquisition of the Company through the purchase or exchange of the
stock or assets of the Company by merger or otherwise; or if
one-third or more of the Board elected in a 12-month period or less
are so elected without the approval of a majority of the Board as
constituted at the beginning of such period; or a liquidation or
dissolution of Company.
3. Termination Following
Change In Control . If any of the events
described in Section 2 above constituting a Change in Control of
the Company shall have occurred, then unless the termination is (A)
because of your death, Disability or Retirement, (B) by the Company
for Cause, or (C) by You other than for Good Reason, on the
subsequent termination of your employment during the term of this
Agreement, You shall be entitled to the severance benefits provided
in Section 4.3 below if such termination occurs on or before the
third (3 rd
) anniversary of the Change in
Control date .
3.1 Disability; Retirement
. If, as a result of your incapacity due to physical or
mental illness, You shall have been absent from the full-time
performance of your duties with the Company for 6 consecutive
months, and within 30 days after written notice of termination is
given You shall not have returned to the full-time performance of
your duties, your employment may be terminated for
"Disability." Termination of your employment by the
Company or You due to your "Retirement" shall mean termination in
accordance with the Company's retirement policy, including early
retirement, generally applicable to its salaried employees or in
accordance with any retirement arrangement established with your
consent with respect to You.
3.2 Cause
. Termination by the Company of your employment for
"Cause" shall mean termination as a result of:
3.2.1 The willful and continued
failure by You to substantially perform your duties with the
Company as such employment was
performed by
You prior to the Change in Control (other than any such failure
resulting from your Disability or any such actual or anticipated
failure after the issuance by You of a Notice of Termination for
Good Reason as defined herein) after a written demand for
substantial performance is delivered to You by the Board, which
demand specifically identifies the manner in which the Board
believes that You have not substantially performed your duties;
or
3.2.2
The willful act by You in conduct that is
demonstrably and materially injurious to the Company, and which the
Board deems to cause or will cause substantial economic damage to
the Company or injury to the business reputation of the Company,
monetarily or otherwise. For purposes of this Section,
no act, or failure to act, on your part shall be deemed
“willful" unless done, or omitted to be done, by You not in
good faith and without a reasonable belief that your action or
omission was in the best interest of the
Company. Notwithstanding the foregoing, You shall not be
deemed to have been terminated for Cause unless and until there
shall have been delivered to You a copy of a resolution duly
adopted by the affirmative vote of not less than three-quarters of
the entire membership of the Board at a meeting of the Board called
and held for such purpose (after reasonable notice to You and an
opportunity for You, together with your counsel, to be heard before
the Board), finding that in the good faith opinion of the Board You
were guilty of conduct set forth above in clauses 3.2.1 or 3.2.2 of
this Section and specifying the particulars in detail.
3.3 Good Reason
. You shall be entitled to receive severance benefits as
provided in this Agreement if You terminate your employment with
the Company for “Good Reason.” For purposes
of this Agreement, "Good Reason" shall mean, without your consent,
the occurrence in connection with a Change in Control of the
Company of any of the following circumstances unless, in the case
of Sections 3.3.1, 3.3.5, 3.3.6, 3.3.7, or 3.3.8, the circumstances
are fully corrected prior to the Date of Termination specified in
the Notice of Termination, as defined in Sections 3.5 and 3.4,
respectively, given in respect of them. If You terminate
your employment with the Company for Good Reason, as provided
below, your employment with the Company shall be considered to have
been involuntarily terminated by the Company:
3.3.1 The assignment to You of any
significant employment duties which are inconsistent with your
status and position (i) prior to the Change in Control where such
change is a direct result of any pending Change in Control; or (ii)
as such status exists immediately prior to the Change in Control of
the Company, or (iii) which are a
substantial
adverse alteration in the nature or status of your responsibilities
from those in effect immediately prior to the Change in Control of
the Company whichever is applicable;
3.3.2
A reduction by the Company in your annual base salary
as in effect on the initial date of this Agreement, or as same may
be increased from time to time irrespective of future Company
policies including any across-the-board salary reductions similarly
affecting all key employees of the Company;
3.3.3
Your relocation, without your consent, to an
employment location not within twenty-five (25) miles of your
present office or job location, except for required travel on the
Company's business to an extent substantially consistent with your
present business travel obligations;
3.3.4
The failure by the Company, without your consent, to
pay to You any part of your current compensation, or to pay to You
any part of an installment of deferred compensation under any
deferred compensation program of the Company, within fourteen (14)
days of the date the compensation is due;
3.3.5
The failure by the Company to continue in effect any
bonus to which You were entitled, or any compensation plan in which
You participate (i) prior to the Change in Control where such
change is a direct result of any pending Change in Control, or (ii)
immediately prior to the Change in Control of the Company that is
material to your total compensation, including but not limited to
the Company's Restricted Stock Plan, 401(k) Plan, and Benefit
Plans, or any substitute plans adopted prior to the Change in
Control of the Company, unless an equitable arrangement (embodied
in an ongoing substitute or alternative plan) has been made with
respect to the plan, or the failure by the Company to continue your
participation in it (or in such substitute or alternative plan) on
a basis not materially less favorable, both in terms of the amount
of benefits provided and the level of your participation relative
to other participants, as existed at the time of the Change in
Control;
3.3.6
The failure by the Company to continue to provide You
with (i) benefits substantially similar to those enjoyed by You
under any of the Company's life insurance, medical, health and
accident, or disability plans in which You were participating at
the time of the Change in Control of the Company was in effect for
the employees of the Company generally at the time of the Change in
Control, (ii) the failure to continue to provide You with a Company
automobile
or allowance in
lieu of it at the time of the Change in Control of the Company,
(iii) the taking of any action by the Company that would directly
or indirectly materially reduce any of such benefits or deprive You
of any material fringe benefit enjoyed by You at the time of the
Change in Control of the Company, or (iv) the failure by the
Company to provide You with the number of paid vacatio
