UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q/A
(Mark One)
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the quarterly period ended March 31, 1996
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the fiscal period from to
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Commission file number 0-8503
SOUTHEASTERN MICHIGAN GAS ENTERPRISES, INC.
(Exact name of registrant as specified in its charter)
Michigan 38-2144267
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
405 Water Street, Port Huron, Michigan 48060
(Address of principal executive offices)
810-987-2200
(Registrant's telephone number, including area code)
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
requirements for the past 90 days. Yes [X] No [ ]
The number of shares of common stock outstanding as of April 30, 1996, is
11,794,695.
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PART II - OTHER INFORMATION
Item 6. Exhibits and Reports on Form 8-K.
(a) List of Exhibits - (See Exhibit Index.)
3(i)(1) --Articles of Incorporation of Southeastern Michigan Gas
Enterprises, Inc. ("Enterprises"), as restated
July 11, 1989.
3(i)(2) --Certificate of Amendment to Article III of the Articles
of Incorporation dated May 16, 1990.
3(ii) --Bylaws of Enterprises--last revised March 1, 1995.
4(i) --Trust Indenture dated April 1, 1992, between Enterprises
and NBD Bank, N.A. as Trustee.
4(ii) --Note Agreement dated as of June 1, 1994, relating to
issuance of $80,000,000 of long-term debt.
10(i) --Guaranty Agreement dated October 10, 1991, relating to
financing of NOARK.
10(ii) --Group A Employment Contract.
10(iii) --Short-Term Incentive Plan.
10(iv) --Deferred Compensation and Phantom Stock Purchase
Agreement (for outside directors only).
10(v) --Supplemental Retirement Plan for Certain Officers.
10(vi) --Separation Agreement and Release dated January 18, 1996
between Ward Kirby and Enterprises.
10(vii) --Consulting Agreement dated January 17, 1996 between Ward
Kirby and Enterprises.
27 --Financial Data Schedule.
(b) Reports on Form 8-K.
No reports on Form 8-K were filed during the first quarter of 1996.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
SOUTHEASTERN MICHIGAN GAS ENTERPRISES, INC.
(Registrant)
Dated: July 18, 1996
By: Robert F. Caldwell
Executive Vice President and
Principal Accounting and Financial
Officer
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<PAGE>
EXHIBIT INDEX
Form 10-Q/A
First Quarter 1996
Filed
--------------------
Exhibit By
No. Description Herewith Reference
- ------- ----------- -------- ---------
3(i)(1) Articles of Incorporation of Southeastern
Michigan Gas Enterprises, Inc.
("Enterprises"), as restated
July 11, 1989.(e) x
3(i)(2) Certificate of Amendment to Article III
of the Articles of Incorporation dated
May 16, 1990.(f) x
3(ii) Bylaws of Enterprises--last revised
March 1, 1995.(g) x
4(i) Trust Indenture dated April 1, 1992, between
Enterprises and NBD Bank, N.A. as Trustee.(b) x
4(ii) Note Agreement dated as of June 1, 1994,
relating to issuance of $80,000,000 of
long-term debt.(d) x
10(i) Guaranty Agreement dated October 10, 1991,
relating to financing of NOARK.(a) x
10(ii) Group A Employment Contract.(c) x
10(iii) Short-Term Incentive Plan.(c) x
10(iv) Deferred Compensation and Phantom Stock
Purchase Agreement (for outside
directors only).(h) x
10(v) Supplemental Retirement Plan for Certain
Officers.(i) x
10(vi) Separation Agreement and Release dated
January 18, 1996 between Ward Kirby and
Enterprises. x
10(vii) Consulting Agreement dated January 17, 1996
between Ward Kirby and Enterprises. x
27 Financial Data Schedule.(i) x
Key to Exhibits Incorporated by Reference
(a) Filed with Enterprises' Registration Statement, Form S-2, No.
33-46413, filed March 16, 1992.
(b) Filed with Enterprises' Form 10-Q for the quarter ended March 31,
1992, File No. 0-8503.
(c) Filed with Enterprises' Form 10-K for 1992, dated March 30, 1993,
File No. 0-8503.
(d) Filed with Enterprises' Form 10-Q for the quarter ended June 30,
1994, File No. 0-8503.
(e) Filed with Enterprises' Form 10-K for 1989, dated March 29, 1990,
File No. 0-8503.
(f) Filed with Enterprises' Form 10-K for 1990, dated March 28, 1991,
File No. 0-8503.
(g) Filed with Enterprises' Form 10-K for 1994, dated March 28, 1995,
File No. 0-8503.
(h) Filed with Enterprises' Form 10-Q for the quarter ended
September 30, 1994, File No. 0-8503.
(i) Filed with Enterprises' Form 10-Q for the quarter ended March 31,
1996, File No. O-8503.
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Exhibit 10(vi)
SEPARATION AGREEMENT AND RELEASE
This Separation Agreement and Release ("Agreement") is made
and entered into by and between WARD N. KIRBY ("EMPLOYEE"), and
SOUTHEASTERN MICHIGAN GAS ENTERPRISES, INC. ("COMPANY").
WHEREAS, EMPLOYEE is presently employed by COMPANY pursuant
to a certain Employment Agreement dated Jan. 1, 1993; and
WHEREAS, EMPLOYEE desires to resign his employment with
COMPANY, and COMPANY agrees to accept such resignation.
NOW, THEREFORE, for and in consideration of the following
promises the parties agree to the following:
1. Resignation. By signing and submitting this Agreement
to COMPANY, EMPLOYEE also submits his resignation from employment
with COMPANY effective as of the date hereof. As of the date
hereof, EMPLOYEE's employment relationship with COMPANY will
end.
2. Consulting Agreement. As of the date hereof, COMPANY
and EMPLOYEE will enter into a Consulting Agreement (in the form
attached hereto as Attachment No. 1), which will become effective
as of the end of EMPLOYEE's employment relationship with COMPANY.
3. Payments and Benefits. COMPANY will provide the
payments and benefits described herein in consideration of and in
exchange for EMPLOYEE's promises and obligations herein so long
as he submits this Agreement, properly executed, to COMPANY on or
before February 7, 1996, and adheres to the promises and
agreements set out in this Agreement.
a. Severance Payment. On or before January 31, 1996
(but, in any event, not earlier than the Effective Date, as
that term is defined in paragraph 16), COMPANY will pay to
EMPLOYEE an amount equal to Two Hundred Ten Thousand and
Three Hundred Dollars ($210,300) (reduced as necessary to
account for federal, state, and local withholding and
employment taxes).
b. Insurance Benefits.
i. COMPANY will provide continuing coverage for
EMPLOYEE until EMPLOYEE reaches age sixty-five (65)
under the COMPANY's medical and dental benefit programs
as regularly available to COMPANY's executive
management employees.
ii. When EMPLOYEE reaches age 65, COMPANY will
provide continuing coverage for EMPLOYEE under the
COMPANY's retiree health care programs as regularly
available to COMPANY's executive management employees.
iii. COMPANY will provide life insurance coverage
for EMPLOYEE for a period of one year from the date
hereof under the COMPANY's life insurance program as
regularly available to COMPANY's executive management
employees.
iv. COMPANY will provide disability insurance
coverage for EMPLOYEE for a period of one year from the
date hereof under the COMPANY's disability insurance
program as regularly available to COMPANY's executive
management employees.
c. Outplacement Services. COMPANY will provide
EMPLOYEE with outplacement services through a mutually
agreeable provider of such services, as selected by
EMPLOYEE, but with the total cost to COMPANY not to exceed
Twenty-Five Thousand Dollars ($25,000).
d. EBII. COMPANY will pay EMPLOYEE's cost for EBII
for calendar year 1996.
e. Pension Benefits. COMPANY acknowledges that
EMPLOYEE is entitled to all pension benefits vested in
EMPLOYEE as of the Effective Date under the COMPANY's
regular pension plan. In addition, EMPLOYEE will receive
credit under the pension plan as if he were employed by
COMPANY for calendar year 1996 at a salary in the amount set
out in paragraph 3(a) above. Further, COMPANY acknowledges
that SERP (as approved on December 7, 1995) will apply to
EMPLOYEE.
f. COMPANY will transfer title to EMPLOYEE of the
automobile presently provided to him at COMPANY expense. In
addition, COMPANY will forgive future repayment of any
unpaid costs relating to the CNG conversion of EMPLOYEE's
personal automobile.
g. COMPANY will provide EMPLOYEE with the personal
computer equipment (a 486 computer, monitor and printer)
presently used by EMPLOYEE in his office.
h. COMPANY will pay EMPLOYEE for four weeks of earned
vacation and will also pay EMPLOYEE any bonus to which he
would be entitled as of December 31, 1995, pursuant to the
COMPANY's bonus plan based on 1995 year-end results.
i. Legal Fees. COMPANY will pay EMPLOYEE's legal
fees incurred in connection with this Agreement in an amount
not to exceed Three Thousand Dollars ($3,000).
3. Continuing Cooperation and Hold Harmless. EMPLOYEE
agrees to continue to cooperate fully with COMPANY in connection
with any litigation, investigations, or other actual or potential
disputes arising out of events which occurred prior to the
Effective Date; it being understood that such matters
specifically include, without limitation, the current on-going
litigation between Lawrence J. Gagnon and EMPLOYEE and COMPANY.
COMPANY agrees to hold harmless and reimburse EMPLOYEE for
damages and reasonable attorney's fees and expenses resulting
from the Gagnon litigation or incurred in connection with
EMPLOYEE's efforts pursuant to this paragraph, and further agrees
to reimburse EMPLOYEE for all other reasonable expenses incurred
as a result of his efforts pursuant to this paragraph; provided,
however, that COMPANY's obligation to hold harmless and reimburse
EMPLOYEE as set forth above extends only to the same extent
COMPANY would be obligated to hold harmless or reimburse EMPLOYEE
for such expenses if EMPLOYEE were still employed by COMPANY.
4. Release of Claims. EMPLOYEE, for and on behalf of
himself and his heirs, beneficiaries, executors, administrators,
successors, assigns, and anyone claiming through or under any of
the foregoing, hereby agrees to, and does, remise, release and
forever discharge COMPANY, its agents, officers, employees,
successors and assigns, and parent organizations (if any), from
any and all matters, claims, demands, damages, causes of action,
debts, liabilities, controversies, judgments and suits of every
kind and nature whatsoever, foreseen or unforeseen, known or
unknown, which have arisen or could arise between EMPLOYEE and
COMPANY from matters which occurred at any time prior to the date
of execution of this Agreement, which matters include this
Agreement and EMPLOYEE's separation from employment with COMPANY.
5. Agreement Not to File Suit. EMPLOYEE, for and on
behalf of himself and his heirs, beneficiaries, executors,
administrators, successors, assigns, and anyone claiming through
or under any of the foregoing, agrees that he will not file or
otherwise submit any charge, claim, complaint, or action to any
agency, court, organization, or judicial forum (nor will he
permit any person, group of persons, or organization to take such
action on his behalf) against COMPANY or any of its officers,
agents, employees, or anyone acting on its behalf, arising out of
any actions or non-actions on the part of COMPANY arising before
execution of this Agreement.
6. Description of Claims. The claims, complaints, actions
and causes of action described in paragraphs 4 and 5 include, but
are not limited to, (i) any breach of any actual or implied
contract of employment between EMPLOYEE and COMPANY, (ii) any
claim of unjust, wrongful, or tortious discharge (including any
claim of constructive discharge, fraud, negligence,
whistleblowing, or intentional infliction of emotional distress),
(iii) any claim of defamation or other common-law action, or
(iv) any claims of violations arising under the Civil Rights Act
of 1964, as amended, 42 U.S.C. Section 2000e et seq., the
Americans with Disabilities Act of 1990, as amended, 42 U.S.C.
Section 12101 et seq., the Age Discrimination in Employment Act,
as amended, 29 U.S.C. Section 621 et seq., the Fair Labor
Standards Act of 1938, as amended, 29 U.S.C. Section 201 et seq.,
the Rehabilitation Act of 1973, as amended, 29 U.S.C. Section 701
et seq., the Employee Retirement Income Security Act of 1974, 29
U.S.C. Section 1001 et seq., the Elliott-Larsen Civil Rights Act,
Section 37.2101 et seq., Mich. Comp. Laws, or any other relevant
federal, state, or local statutes or ordinances.
7. Release of Benefit Claims. EMPLOYEE, for and on behalf
of himself and his heirs, beneficiaries, executors,
administrators, successors, assigns, and anyone claiming through
or under any of the foregoing, further releases and waives any
claims for pay, vacation pay, insurance, or welfare benefits or
any other benefits of employment with COMPANY arising from events
occurring prior to the date of this Agreement other than claims
to the payments and benefits acknowledged in paragraph 3 above
and EMPLOYEE's vested entitlement in COMPANY retirement plans, if
any.
8. Obligation Regarding Confidential Information.
EMPLOYEE agrees that he will not use directly or indirectly for
himself or use for or disclose to any other person any
confidential information obtained during the period of his
employment by COMPANY. Any such release of confidential
information by EMPLOYEE constitutes a material breach of this
Agreement and subjects him to forfeiture of all benefits and
payments pursuant to said Agreement. COMPANY expressly reserves
its right to pursue all other legal remedies available to it by
virtue of such release of confidential information. Further,
EMPLOYEE shall immediately deliver to COMPANY without
reproduction all such written materials (including all copies)
in EMPLOYEE's possession or under his control which contain any
confidential information including, but not limited to, product
information, engineering information, customer lists, company
policies and procedures, and financial information.
9. Definition of Confidential Information. The term
"confidential information" means information not generally known
outside COMPANY which concerns COMPANY or its business, and
includes, but is not limited to, information related to
inventions, discoveries, patent applications, research,
development and design projects, and data, customer lists,
marketing and financial data, manufacturing, production, sales
and customer information, trade secrets and formulas, and
business plans and programs.
10. Confidentiality of Agreement. EMPLOYEE agrees that he
will not publicize this Agreement either directly or indirectly,
either in specific or as to general content, to either the public
generally, to any employee of COMPANY, or to any other person or
entity, except as he might be lawfully compelled to give
testimony by a court of competent jurisdiction. Any such
publication shall be considered a material breach of the
Agreement and shall subject the breaching party to liability for
damages. EMPLOYEE's agreement to keep confidential the terms of
this Agreement extends to all persons other than his attorney and
accountant who have a legitimate need to know the terms in order
to render professional advice or services to him; otherwise,
EMPLOYEE agrees not to identify or reveal any other terms of the
Agreement except as otherwise provided herein.
11. Arbitration. Any controversy or claim arising out of
or relating to this Agreement or the breach thereof shall be
settled by arbitration in the City of Port Huron by three
arbitrators, one of whom shall be appointed by the COMPANY, one
by the EMPLOYEE, and the third of whom shall be appointed by the
first two arbitrators. The arbitration shall be conducted in
accordance with the rules of the American Arbitration
Association. Judgment upon the award rendered by the arbitrators
may be entered in any court having jurisdiction thereof. The
costs and expenses of the arbitration (including but not limited
to reasonable attorney fees and expenses actually incurred by
EMPLOYEE) shall be borne by the COMPANY if EMPLOYEE is the
prevailing party; otherwise, each party will be responsible for
their own fees and expenses.
12. No Admission of Wrongdoing. The parties to this
Agreement agree that nothing in this Agreement is an admission by
any party hereto of any wrongdoing, either in violation of an
applicable law or otherwise, and that nothing in this Agreement
is to be construed as such by any person.
13. Knowing and Voluntary Agreement. EMPLOYEE represents,
declares, and agrees that he voluntarily accepts the benefits
described above for the purposes of making a full and final
compromise, adjustment, and settlement of all claims hereinabove
described. EMPLOYEE acknowledges that he has hereby been advised
to consult with an attorney of his own choosing prior to
executing this Agreement and that he understands the Agreement
and the effect of signing the Agreement.
14. Entire Agreement. The foregoing Agreement constitutes
the entire agreement among the parties and there are no other
understandings or agreements, written or oral, between them on
the subject. Separate copies of this document shall constitute
original documents which may be signed separately, but which
together will constitute one single agreement.
15. Choice of Law. This Agreement shall be construed and
governed by the laws of the State of Michigan.
16. Consideration Period. EMPLOYEE acknowledges that he
has been given at least twenty-one (21) days within which to
consider this Agreement before its execution. This Agreement
shall not become effective until seven calendar days after the
date of execution by EMPLOYEE. During this seven-day period,
EMPLOYEE may revoke the Agreement. EMPLOYEE acknowledges that,
unless revoked, this Agreement becomes final and binding upon
expiration of the seven-day period and execution of this
Agreement by COMPANY. The eighth calendar day following the date
of execution of this Agreement by EMPLOYEE shall be known as the
"Effective Date."
IN WITNESS WHEREOF, the undersigned parties have executed
this Separation Agreement and Release.
SOUTHEASTERN MICHIGAN GAS
ENTERPRISES, INC.
By: Frank G. Andreoni, Chairman
Date: Jan. 18, 1996
WARD N. KIRBY
Ward N. Kirby
Date: Jan. 17, 1996
Exhibit 10(vii)
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT ("Agreement") is made and entered
into as of this 17th day of January, 1996, by and between
SOUTHEASTERN MICHIGAN GAS ENTERPRISES, INC., a Michigan
corporation ("Company") and WARD N. KIRBY ("Consultant").
W I T N E S S E T H:
WHEREAS, Consultant will resign from employment with Company
as of the close of business on January 17, 1996; and
WHEREAS, Company desires to retain the services of
Consultant, and Consultant agrees to provide consulting services,
for a one year period.
NOW, THEREFORE, in consideration of the premises and of the
mutual covenants and agreements hereinafter set forth, Company
and Consultant agree to the following:
1. Consulting Term. Consultant is hereby retained by
Company as consultant and independent contractor to provide
consulting services for a one-year period deemed to have
commenced on January 1, 1996 and ending December 31, 1996 (the
"Consulting Period"), unless this Agreement is (a) sooner
terminated in accordance with Section 5 hereof, or (b) extended
by mutual agreement.
2. Consulting Services. Consultant agrees that during the
Consulting Period he will faithfully render such consulting and
advisory services, with respect to the conduct of the business of
Company and its subsidiaries, or otherwise, as may from time to
time be requested of Consultant by Company.
3. Consulting Fees. In consideration for the consulting
services, Company will pay to Consultant compensation in the
amount of Eighteen Thousand Dollars ($18,000), to be paid to
Consultant in a lump sum on or before February 15, 1996.
4. Expenses. Consultant shall be reimbursed for all
necessary and ordinary expenses incurred by Consultant which are
directly associated with the services rendered hereunder and
which are not otherwise reimbursed to him, including, by way of
example but not limitation, reasonable travel, lodging, meals and
business entertainment but not including secretarial services.
5. Termination of Consulting Period. Notwithstanding
anything to the contrary contained herein, Company may, by notice
in writing, terminate this Agreement upon the occurrence of any
of the following events:
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a) If Consultant commits any breach of the terms or
conditions hereof;
b) If Consultant fails to perform his duties and
obligations as specified herein; or
c) If Consultant commits acts constituting willful
fraud or dishonesty.
6. Confidential Information. Consultant, during the
Consulting Period and thereafter will not, directly or indirectly
(without Company's prior written consent), use for himself or use
for, or disclose to, any party other than Company, or any
subsidiary or affiliate of Company, any Confidential Information,
as hereafter defined, including but not limited to the following:
a) the business or products of Company, or any of its
subsidiaries or affiliates, or
b) the costs, uses or applications of, or the
customers or suppliers (and information concerning
transactions and prospective transactions
therewith) for products made, assembled, produced
or sold by Company or any subsidiary or affiliate
thereof, or
c) any apparatus, method, system, manufacturing or
other process at any time used, developed or
investigated by or for Company or any subsidiary
or affiliate thereof, whether or not invented,
developed, acquired, discovered or investigated by
Consultant.
As used herein, "Confidential Information" means all technical
and business information of Company, its subsidiaries and
affiliates which is of a confidential, trade secret and/or
proprietary character.
7. Governing Law. This Agreement shall be interpreted in
accordance with and governed by the laws of the State of
Michigan.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed as of the day and year first above
written.
SOUTHEASTERN MICHIGAN GAS
ENTERPRISES, INC.
By: Frank G. Andreoni, Chairman
Date: Jan. 18, 1996
WARD N. KIRBY
Ward N. Kirby
Date: January 17, 1996
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