Certain Terminations. (i) If a Termination occurs during the Employment Period, Cinergy will pay to the Executive a lump sum amount, in cash, equal to the sum of the following Accrued Obligations: (1) the Executive's Annual Base Salary through the Date of Termination to the extent not previously paid; (2) an amount equal to the AIP Benefit for the fiscal year that includes the Date of Termination multiplied by a fraction, the numerator of which is the number of days from the beginning of that fiscal year to and including the Date of Termination and the denominator of which is three hundred and sixty-five (365). The AIP Benefit will be determined using a percentage determined by the Chief Executive Officer, in his discretion, up to the maximum percentage specified in Subsection 3b, but no less than the Target Annual Bonus. (3) any compensation previously deferred by the Executive (together with any accrued interest or earnings) and any accrued vacation pay, in each case to the extent not previously paid. The Accrued Obligations described in this Paragraph 5a(i) will be paid within thirty (30) days after the Date of Termination. These Accrued Obligations are payable to the Executive regardless of whether a Change in Control has occurred. (ii) Prior to the occurrence of a Change in Control, and in the event of (A) a Termination other than by reason of the Executive's death, or (B) the Executive's termination of his employment during the Employment Period for Good Reason, Cinergy will pay the Accrued Obligations, and Cinergy will have the following obligations: (1) Cinergy will pay to the Executive a lump sum amount, in cash, equal to three (3) times the sum of the Annual Base Salary and the AIP Benefit. For this purpose, the Annual Base Salary will be at the rate in effect at the time Notice of Termination is given (without giving effect to any reduction in Annual Base Salary, if any, prior to the termination). The AIP Benefit will be determined using a percentage determined by the Chief Executive Officer, in his discretion, which will not be less than the Executive's annual target percentage for the fiscal year in which the Termination occurs and will not be greater than the maximum percentage specified in Subsection 3b. This lump sum will be paid within thirty (30) days of the Date of Termination. (2) Cinergy will pay to the Executive the value of all deferred compensation amounts and all executive life insurance benefits whether or not they are otherwise currently vested or payable. Payment will be made in accordance with the terms of the applicable plan or program. (3) Except as provided under Clauses (A) and (B) below, Cinergy will continue, until the end of the Employment Period, medical and dental benefits to the Executive and/or the Executive's family at least equal to those that would have been provided if the Executive's employment had not been terminated (excluding benefits to which the Executive has waived his rights in writing). The benefits described in the preceding sentence will be in accordance with the medical and welfare benefit plans, practices, programs, or policies of Cinergy (the "M&W Plans") as then currently in effect and applicable generally to other Cinergy senior executives and their families. (A) If, as of the Executive's Date of Termination, the Executive meets the eligibility requirements for Cinergy's retiree medical and welfare benefit plans, the provision of those retiree medical and welfare benefit plans to the Executive will satisfy Cinergy's obligation under this Subparagraph 5a(ii)(3). (B) If, as of the Executive's Date of Termination, the provision to the Executive of the M&W Plan benefits described in this Subparagraph 5a(ii)(3) would either (1) violate the terms of the M&W Plans or (2) violate any of the Code's nondiscrimination requirements applicable to the M&W Plans, then Cinergy, in its sole discretion, may elect to pay the Executive, in lieu of the M&W Plan benefits described under this Subparagraph 5a(ii)(3), a lump sum cash payment equal to the total monthly premiums that would have been paid by Cinergy for the Executive under the M&W Plans from the Date of Termination through the end of the Employment Period. Nothing in this Clause will affect the Executive's right to elect COBRA continuation coverage under a M&W Plan in accordance with applicable law. (C) If the Executive becomes employed by another employer and is eligible to receive medical or other welfare benefits under another employer-provided plan, any benefits provided to the Executive under the M&W Plans will be secondary to those provided under the other employer-provided plan during the Executive's applicable period of eligibility. (4) Ownership of the automobile assigned to the Executive by Cinergy will be transferred to the Executive within 30 days of the Date of Termination. The effect of this transfer will be grossed up for federal and state income taxes as soon as administratively feasible after the transfer is effective. (5) Cinergy will provide tax counseling services through an agency selected by the Executive, not to exceed Fifteen Thousand Dollars ($15,000.00) in cost. (iii) In the event of Termination by Cinergy or by the Executive for Good Reason upon or during the twenty-four (24) month period after the occurrence of a Change in Control, then in lieu of any further salary payments to the Executive for periods subsequent to the Date of Termination and in lieu of any other benefits payable pursuant to Paragraph 5a(ii), Cinergy will have the following obligations: (1) Cinergy will pay to the Executive a lump sum severance payment, in cash, equal to the greater of: (A) the present value of all amounts and benefits that would have been due under Paragraph 5a(ii), excluding Subparagraphs 5a(ii)(3), 5a(ii)(4), and 5a(ii)(5), or (B) three (3) times the sum of (x) the higher of the Executive's Annual Base Salary in effect immediately prior to the occurrence of the event or circumstance upon which the Notice of Termination is based or in effect immediately prior to the Change in Control, and (y) the higher of the amount paid to the Executive pursuant to all annual incentive compensation or bonus plans or programs maintained by Cinergy in the year preceding that in which the Date of Termination occurs or in the year preceding that in which the Change in Control occurs; and (2) For a thirty-six (36) month period after the Date of Termination, Cinergy will arrange to provide the Executive with life, disability, accident, and health insurance benefits substantially similar to those that the Executive is receiving immediately prior to the Notice of Termination (without giving effect to any reduction in those benefits subsequent to a Change in Control that constitutes Good Reason), except for any benefits that were waived by the Executive in writing. If Cinergy arranges to provide the Executive with life, disability, accident, and health insurance benefits, those benefits will be reduced to the extent comparable benefits are actually received by or made available to the Executive without cost during the thirty-six (36) month period following the Executive's Date of Termination. The Executive must report to Cinergy any such benefits that he actually receives. In lieu of the benefits described in the preceding sentences, Cinergy, in its sole discretion, may elect to pay to the Executive a lump sum cash payment equal to thirty-six (36) times the monthly premiums that would have been paid by Cinergy to provide those benefits to the Executive. Nothing in this Subparagraph 5a(iii)(2) will affect the Executive's right to elect COBRA continuation coverage in accordance with applicable law. (3) Ownership of the automobile assigned to the Executive by Cinergy will be transferred to the Executive within 30 days of the Date of Termination. The effect of this transfer will be grossed up for federal and state income taxes as soon as administratively feasible after the transfer is effective. (4) Cinergy will provide tax counseling services through an agency selected by the Executive, not to exceed Fifteen Thousand Dollars ($15,000.00) in cost. For purposes of this Paragraph (iii), the Executive will be deemed to have incurred a Termination following a Change in Control if the Executive's employment is terminated prior to a Change in Control, without Cause at the direction of a Person who has entered into an agreement with Cinergy, the consummation of which will constitute a Change in Control, or if the Executive terminates his employment for Good Reason prior to a Change in Control if the circumstances or event that constitutes Good Reason occurs at the direction of such a Person.
Appears in 4 contracts
Samples: Employment Agreement (Union Light Heat & Power Co), Employment Agreement (Union Light Heat & Power Co), Employment Agreement (Union Light Heat & Power Co)
Certain Terminations. (i) If a Qualifying Termination occurs during the Employment Period, Cinergy will pay to the Executive a lump sum amount, in cash, equal to the sum of the following Accrued Obligations:
(1) the pro-rated portion of the Executive's Annual Base Salary payable through the Date of Termination Termination, to the extent not previously paid;.
(2) any amount payable to the Executive under the Annual Incentive Plan in respect of the most recently completed fiscal year, to the extent not theretofore paid.
(3) an amount equal to the AIP Benefit for the fiscal year that includes the Date of Termination multiplied by a fraction, the numerator of which is the number of days from the beginning of that fiscal year to and including the Date of Termination and the denominator of which is three hundred and sixty-five (365). The AIP Benefit component of the calculation will be determined using a percentage equal to the annual bonus that would have been earned by the Executive pursuant to any annual bonus or incentive plan maintained by Cinergy in respect of the fiscal year in which occurs the date of determination, determined by projecting Cinergy's performance and other applicable goals and objectives for the Chief Executive Officer, in his discretion, up entire fiscal year based on Cinergy's performance during the period of such fiscal year occurring prior to the maximum percentage specified in Subsection 3bDate of Termination, but no less than the Target Annual Bonusand based on such other assumptions and rates as Cinergy deems reasonable.
(34) any compensation previously deferred by the Executive (together with any accrued interest or earnings) and any accrued vacation pay, in each case to the extent not previously paid. The Accrued Obligations described in this Paragraph 5a(i) will be paid within thirty (30) days after the Date of Termination. These Accrued Obligations are payable to the Executive regardless of whether a Change in Control has occurred.
(ii) Prior In the event of a Qualifying Termination either prior to the occurrence of a Change in Control, and or more than twenty-four (24) months following the occurrence of a Change in the event of (A) a Termination other than by reason of the Executive's death, or (B) the Executive's termination of his employment during the Employment Period for Good ReasonControl, Cinergy will pay the Accrued Obligations, and Cinergy will have the following additional obligations:
(1) Cinergy will pay to the Executive a lump sum amount, in cash, equal to three (3) times the sum of the Annual Base Salary and the AIP BenefitAnnual Bonus. For this purpose, the Annual Base Salary will be at the rate in effect at the time Notice of Termination is given (without giving effect to any reduction in Annual Base Salary, if any, prior to the termination, other than across-the-board reductions). The AIP Benefit , and the Annual Bonus will be determined using a percentage determined the higher of (A) the annual bonus earned by the Chief Executive Officerpursuant to any annual bonus or incentive plan maintained by Cinergy in respect of the year ending immediately prior to the fiscal year in which occurs the Date of Termination, and (B) the annual bonus that would have been earned by the Executive pursuant to any annual bonus or incentive plan maintained by Cinergy in his discretionrespect of the fiscal year in which occurs the Date of Termination, which will calculated by projecting Cinergy's performance and other applicable goals and objectives for the entire fiscal year based on Cinergy's performance during the period of such fiscal year occurring prior to the Date of Termination, and based on such other assumptions and rates as Cinergy deems reasonable; provided, however that for purposes of this Subsection 5a(ii)(1)(B), the Annual Bonus shall not be less than the Executive's annual target percentage Annual Target Bonus, nor greater than the Maximum Target Bonus for the fiscal year in which the Date of Termination occurs and will not be greater than the maximum percentage specified in Subsection 3boccurs. This lump sum will be paid within thirty (30) days of the Date of Termination.
(2) Cinergy will pay Subject to the Executive the value of all deferred compensation amounts and all executive life insurance benefits whether or not they are otherwise currently vested or payable. Payment will be made in accordance with the terms of the applicable plan or program.
(3) Except as provided under Clauses (A), (B) and (BC) below, Cinergy will continueprovide, until the end of the Employment Period, medical and dental benefits to the Executive and/or the Executive's family dependents at least equal to those that would have been provided if the Executive's employment had not been terminated (excluding benefits to which the Executive has waived his rights in writing). The benefits described in the preceding sentence will be in accordance with the medical and welfare benefit plans, practices, programs, or policies of Cinergy (the "M&W Plans") as then currently in effect and applicable generally to other Cinergy senior executives and their families.
(A) If, as of the Executive's Date of Termination, the Executive meets the eligibility requirements for Cinergy's retiree medical and welfare benefit plans, the provision of those retiree medical and welfare benefit plans to the Executive will satisfy Cinergy's obligation under this Subparagraph 5a(ii)(35a(ii)(2).
(B) If, as of the Executive's Date of Termination, the provision to the Executive of the M&W Plan benefits described in this Subparagraph 5a(ii)(35a(ii)(2) would either (1) violate the terms of the M&W Plans (or any related insurance policies) or (2) violate any of the Code's nondiscrimination requirements applicable to the M&W Plans, then Cinergy, in its sole discretion, may elect to pay the Executive, in lieu of the M&W Plan benefits described under this Subparagraph 5a(ii)(35a(ii)(2), a lump sum cash payment equal to the total monthly premiums (or in the case of a self funded plan, the cost of COBRA continuation coverage) that would have been paid by Cinergy for the Executive under the M&W Plans from the Date of Termination through the end of the Employment Period, grossed up for the effect of federal, state and local income taxes. Nothing in this Clause will affect the Executive's right to elect COBRA continuation coverage under a M&W Plan in accordance with applicable law, and Cinergy will make the payment described in this Clause whether or not the Executive elects COBRA continuation coverage, and whether or not the Executive receives health coverage from another employer.
(C) If the Executive becomes employed by another employer and is eligible to receive medical or other welfare benefits under another employer-provided plan, any benefits provided to the Executive under the M&W Plans will be secondary to those provided under the other employer-provided plan during the Executive's applicable period of eligibility.
(4) Ownership of the automobile assigned to the Executive by Cinergy will be transferred to the Executive within 30 days of the Date of Termination. The effect of this transfer will be grossed up for federal and state income taxes as soon as administratively feasible after the transfer is effective.
(53) Cinergy will provide tax counseling services through an agency selected by the Executive, not to exceed Fifteen Thousand Dollars fifteen thousand dollars ($15,000.00) in cost.
(4) Title and ownership of the automobile assigned to the Executive by Cinergy will be transferred to the Executive within thirty (30) days of the Date of Termination. To the extent there is imputed income to the Executive resulting from the transfer of title, the Executive will receive a cash payment equal to the amount of federal, state and local income taxes resulting from this transfer as soon as administratively feasible after the transfer is effective. At Cinergy's discretion, a cash payment of an equivalent value of the automobile and corresponding income taxes may be paid in lieu of the assignment of the automobile.
(5) Cinergy will pay to the Executive the lump sum present value of any benefits under the Executive Supplemental Life Program under the terms of the applicable plan or program as of the Date of Termination, calculated as if the Executive was fully vested as of the Date of Termination. The lump sum present value, assuming commencement at age 50 or age as of the Date of Termination if later, will be determined using the interest rate applicable to lump sum payments in the Cinergy Corp. Non-Union Employees' Pension Plan or any successor to that plan for the plan year that includes the Date of Termination. To the extent no such interest rate is provided therein, the annual interest rate applicable under section 417(e)(3) of the Code, or any successor provision thereto, for the second full calendar month preceding the first day of the calendar year that includes the Date of Termination will be used. This lump sum will be paid within thirty (30) days of the Date of Termination.
(iii) In the event of a Qualifying Termination by Cinergy or by the Executive for Good Reason upon or during the twenty-four (24) month period after beginning upon the occurrence of a Change in Control, then in lieu of any further salary payments to the Executive for periods subsequent to the Date of Termination and in lieu of any other benefits payable pursuant to Paragraph 5a(ii), Cinergy will pay the Accrued Obligations, and Cinergy will also have the following additional obligations:
(1) Cinergy will pay to the Executive a lump sum severance payment, in cash, equal to the greater of:
(A) the present value of all amounts and benefits that would have been due under Paragraph 5a(ii), excluding Subparagraphs 5a(ii)(3), 5a(ii)(4), and 5a(ii)(5), or
(B) three (3) times the sum higher of (x) the higher sum of the Executive's current Annual Base Salary and Target Annual Bonus and (y) the sum of the Executive's Annual Base Salary in effect immediately prior to the occurrence Change in Control and the Change in Control Bonus. For purposes of this Agreement, the Change in Control Bonus shall mean the higher of (A) the annual bonus earned by the Executive pursuant to any annual bonus or incentive plan maintained by Cinergy in respect of the event or circumstance upon which the Notice of Termination is based or in effect year ending immediately prior to the fiscal year in which occurs the Date of Termination or, if higher, immediately prior to the fiscal year in which occurs the Change in Control, and (yB) the higher of the amount paid to annual bonus that would have been earned by the Executive pursuant to all any annual bonus or incentive compensation or bonus plans or programs plan maintained by Cinergy in respect of the year preceding that in which occurs the Date of Termination, calculated by projecting Cinergy's performance and other applicable goals and objective for the entire fiscal year based on Cinergy's performance during the period of such fiscal year occurring prior to the Date of Termination, and based on such other assumptions and rates as Cinergy deems reasonable, provided, however, that for purposes of this Subsection 5a(iii)(1)(B), such Change in Control Annual Bonus shall not be less than the Annual Target Bonus, nor greater than the Maximum Target Bonus. This lump sum will be paid within thirty (30) days of the Date of Termination.
(2) Cinergy will pay to the Executive the lump sum present value of any benefits under the Executive Supplemental Life Program under the terms of the applicable plan or program as of the Date of Termination, calculated as if the Executive was fully vested as of the Date of Termination. The lump sum present value, assuming commencement at age 50 or age as of the Date of Termination occurs or if later, will be determined using the interest rate applicable to lump sum payments in the Cinergy Corp. Non-Union Employees' Pension Plan or any successor to that plan for the plan year that includes the Date of Termination. To the extent no such interest rate is provided therein, the annual interest rate applicable under section 417(e)(3) of the Code, or any successor provision thereto, for the second full calendar month preceding the first day of the calendar year that in which includes the Change in Control occurs; andDate of Termination will be used. This lump sum will be paid within thirty (30) days of the Date of Termination.
(23) The Executive shall be fully vested in his accrued benefits as of the Date of Termination under the Executive Retirement Plans, and his accrued benefits thereunder will be calculated as if the Executive was credited with three (3) additional years of age and service as of the Date of Termination. However, Cinergy will not commence payment of such benefits until the Executive has attained age 50. For purposes of determining benefits under the Executive Retirement Plans, the definition of earnings will be the same as defined in such plans.
(4) For a thirty-six (36) month period after the Date of Termination, Cinergy will arrange to provide to the Executive with and/or the Executive's dependents life, disability, accident, and health insurance benefits substantially similar to those that the Executive is and/or the Executive's dependents are receiving immediately prior to the Notice of Termination at a substantially similar cost to the Executive (without giving effect to any reduction in those benefits subsequent to a Change in Control that constitutes Good Reason), except for any benefits that were waived by the Executive in writing. If Cinergy arranges to provide the Executive and/or the Executive's dependents with life, disability, accident, and health insurance benefits, those benefits will be reduced to the extent comparable benefits are actually received by or made available to the Executive without cost and/or the Executive's dependents during the thirty-six (36) month period following the Executive's Date of Termination. The Executive must report to Cinergy any such benefits that he or his dependents actually receives. In lieu of the benefits described in the preceding sentences, Cinergy, in its sole discretion, may elect to pay to the Executive a lump sum cash payment equal to thirty-six (36) times the monthly premiums (or in the case of a self funded plan, the cost of COBRA continuation coverage) that would have been paid by Cinergy to provide those benefits to the Executive and/or the Executive's dependents, grossed up for the effect of federal, state and local income taxes. Nothing in this Subparagraph 5a(iii)(25a(iii)(4) will affect the Executive's right to elect COBRA continuation coverage in accordance with applicable law, and Cinergy will make the payment described in this Clause whether or not the Executive elects COBRA continuation coverage, and whether or not the Executive receives health coverage from another employer.
(35) Ownership Title and ownership of the automobile assigned to the Executive by Cinergy will be transferred to the Executive within 30 thirty (30) days of the Date of Termination. The effect To the extent there is imputed income to the Executive resulting from the transfer of title, the Executive will receive a cash payment equal to the amount of federal, state and local income taxes resulting from this transfer will be grossed up for federal and state income taxes as soon as administratively feasible after the transfer is effective. At Cinergy's discretion, a cash payment of an equivalent value of the automobile and corresponding income taxes may be paid in lieu of the assignment of the automobile.
(46) Cinergy will provide tax counseling services through an agency selected by the Executive, not to exceed Fifteen Thousand Dollars fifteen thousand dollars ($15,000.00) in cost.
(7) Cinergy will provide annual dues and assessments of the Executive for membership in a country club selected by the Executive until the end of the Employment Period.
(8) Cinergy will provide outplacement services suitable to the Executive's position until the end of the Employment Period or, if earlier, until the first acceptance by the Executive of an offer of employment. At the Executive's discretion, 15% of Annual Base Salary may be paid in lieu of outplacement services. For purposes of this Paragraph (iii5a(iii), the Executive will be deemed to have incurred a Qualifying Termination following upon a Change in Control if the Executive's employment is terminated prior to a Change in Control, without Cause at the direction of a Person who has entered into an agreement with Cinergy, the consummation of which will constitute a Change in Control, or if the Executive terminates his employment for Good Reason prior to a Change in Control if the circumstances or event that constitutes Good Reason occurs at the direction of such a Person.
Appears in 2 contracts
Samples: Employment Agreement (Cinergy Corp), Employment Agreement (Psi Energy Inc)
Certain Terminations. (i) If a Qualifying Termination occurs during the Employment Period, Cinergy will pay to the Executive a lump sum amount, in cash, equal to the sum of the following Accrued Obligations:
(1) the pro-rated portion of the Executive's Annual Base Salary payable through the Date of Termination Termination, to the extent not previously paid;.
(2) any amount payable to the Executive under the Annual Incentive Plan in respect of the most recently completed fiscal year, to the extent not theretofore paid.
(3) an amount equal to the AIP Benefit for the fiscal year that includes the Date of Termination multiplied by a fraction, the numerator of which is the number of days from the beginning of that fiscal year to and including the Date of Termination and the denominator of which is three hundred and sixty-five (365). The AIP Benefit component of the calculation will be determined using a percentage equal to the annual bonus that would have been earned by the Executive pursuant to any annual bonus or incentive plan maintained by Cinergy in respect of the fiscal year in which occurs the date of determination, determined by projecting Cinergy's performance and other applicable goals and objectives for the Chief Executive Officer, in his discretion, up entire fiscal year based on Cinergy's performance during the period of such fiscal year occurring prior to the maximum percentage specified in Subsection 3bDate of Termination, but no less than the Target Annual Bonusand based on such other assumptions and rates as Cinergy deems reasonable.
(34) any compensation previously deferred by the Executive (together with any accrued interest or earnings) and any accrued vacation pay, in each case to the extent not previously paid. The Accrued Obligations described in this Paragraph 5a(i) will be paid within thirty (30) days after the Date of Termination. These Accrued Obligations are payable to the Executive regardless of whether a Change in Control has occurred.
(ii) Prior In the event of a Qualifying Termination either prior to the occurrence of a Change in Control, and or more than twenty-four (24) months following the occurrence of a Change in the event of (A) a Termination other than by reason of the Executive's death, or (B) the Executive's termination of his employment during the Employment Period for Good ReasonControl, Cinergy will pay the Accrued Obligations, and Cinergy will have the following additional obligations:
(1) Cinergy will pay to the Executive a lump sum amount, in cash, equal to three (3) times the sum of the Annual Base Salary and the AIP BenefitAnnual Bonus. For this purpose, the Annual Base Salary will be at the rate in effect at the time Notice of Termination is given (without giving effect to any reduction in Annual Base Salary, if any, prior to the termination, other than across-the-board reductions). The AIP Benefit , and the Annual Bonus will be determined using a percentage determined the higher of (A) the annual bonus earned by the Chief Executive Officerpursuant to any annual bonus or incentive plan maintained by Cinergy in respect of the year ending immediately prior to the fiscal year in which occurs the Date of Termination, and (B) the annual bonus that would have been earned by the Executive pursuant to any annual bonus or incentive plan maintained by Cinergy in his discretionrespect of the fiscal year in which occurs the Date of Termination, which will calculated by projecting Cinergy's performance and other applicable goals and objectives for the entire fiscal year based on Cinergy's performance during the period of such fiscal year occurring prior to the Date of Termination, and based on such other assumptions and rates as Cinergy deems reasonable; provided, however that for purposes of this Subsection 5a(ii)(1)(B), the Annual Bonus shall not be less than the Executive's annual target percentage Target Annual Bonus, nor greater than the Maximum Annual Bonus for the fiscal year in which the Date of Termination occurs and will not be greater than the maximum percentage specified in Subsection 3boccurs. This lump sum will be paid within thirty (30) days of the Date of Termination.
(2) Cinergy will pay Subject to the Executive the value of all deferred compensation amounts and all executive life insurance benefits whether or not they are otherwise currently vested or payable. Payment will be made in accordance with the terms of the applicable plan or program.
(3) Except as provided under Clauses (A), (B) and (BC) below, Cinergy will continueprovide, until the end of the Employment Period, medical and dental benefits to the Executive and/or the Executive's family dependents at least equal to those that would have been provided if the Executive's employment had not been terminated (excluding benefits to which the Executive has waived his rights in writing). The benefits described in the preceding sentence will be in accordance with the medical and welfare benefit plans, practices, programs, or policies of Cinergy (the "M&W Plans") as then currently in effect and applicable generally to other Cinergy senior executives and their families.
(A) If, as of the Executive's Date of Termination, the Executive meets the eligibility requirements for Cinergy's retiree medical and welfare benefit plans, the provision of those retiree medical and welfare benefit plans to the Executive will satisfy Cinergy's obligation under this Subparagraph 5a(ii)(35a(ii)(2).
(B) If, as of the Executive's Date of Termination, the provision to the Executive of the M&W Plan benefits described in this Subparagraph 5a(ii)(35a(ii)(2) would either (1) violate the terms of the M&W Plans (or any related insurance policies) or (2) violate any of the Code's nondiscrimination requirements applicable to the M&W Plans, then Cinergy, in its sole discretion, may elect to pay the Executive, in lieu of the M&W Plan benefits described under this Subparagraph 5a(ii)(35a(ii)(2), a lump sum cash payment equal to the total monthly premiums (or in the case of a self funded plan, the cost of COBRA continuation coverage) that would have been paid by Cinergy for the Executive under the M&W Plans from the Date of Termination through the end of the Employment Period, grossed up for the effect of federal, state and local income taxes. Nothing in this Clause will affect the Executive's right to elect COBRA continuation coverage under a M&W Plan in accordance with applicable law, and Cinergy will make the payment described in this Clause whether or not the Executive elects COBRA continuation coverage, and whether or not the Executive receives health coverage from another employer.
(C) If the Executive becomes employed by another employer and is eligible to receive medical or other welfare benefits under another employer-provided plan, any benefits provided to the Executive under the M&W Plans will be secondary to those provided under the other employer-provided plan during the Executive's applicable period of eligibility.
(4) Ownership of the automobile assigned to the Executive by Cinergy will be transferred to the Executive within 30 days of the Date of Termination. The effect of this transfer will be grossed up for federal and state income taxes as soon as administratively feasible after the transfer is effective.
(53) Cinergy will provide tax counseling services through an agency selected by the Executive, not to exceed Fifteen Thousand Dollars fifteen thousand dollars ($15,000.00) in cost.
(iii) In the event of a Qualifying Termination by Cinergy or by the Executive for Good Reason upon or during the twenty-four (24) month period after beginning upon the occurrence of a Change in Control, then in lieu of any further salary payments to the Executive for periods subsequent to the Date of Termination and in lieu of any other benefits payable pursuant to Paragraph 5a(ii), Cinergy will pay the Accrued Obligations, and Cinergy will also have the following additional obligations:
(1) Cinergy will pay to the Executive a lump sum severance payment, in cash, equal to the greater of:
(A) the present value of all amounts and benefits that would have been due under Paragraph 5a(ii), excluding Subparagraphs 5a(ii)(3), 5a(ii)(4), and 5a(ii)(5), or
(B) three (3) times the sum higher of (x) the higher sum of the Executive's current Annual Base Salary and Target Annual Bonus and (y) the sum of the Executive's Annual Base Salary in effect immediately prior to the occurrence Change in Control and the Change in Control Bonus. For purposes of this Agreement, the Change in Control Bonus shall mean the higher of (A) the annual bonus earned by the Executive pursuant to any annual bonus or incentive plan maintained by Cinergy in respect of the event or circumstance upon which the Notice of Termination is based or in effect year ending immediately prior to the fiscal year in which occurs the Date of Termination or, if higher, immediately prior to the fiscal year in which occurs the Change in Control, and (yB) the higher of the amount paid to annual bonus that would have been earned by the Executive pursuant to all any annual bonus or incentive compensation or bonus plans or programs plan maintained by Cinergy in respect of the year preceding that in which occurs the Date of Termination, calculated by projecting Cinergy's performance and other applicable goals and objective for the entire fiscal year based on Cinergy's performance during the period of such fiscal year occurring prior to the Date of Termination, and based on such other assumptions and rates as Cinergy deems reasonable, provided, however, that for purposes of this Subsection 5a(iii)(1)(B), such Change in Control Annual Bonus shall not be less than the Target Annual Bonus, nor greater than the Maximum Annual Bonus. This lump sum will be paid within thirty (30) days of the Date of Termination.
(2) Cinergy will pay to the Executive the lump sum present value of any benefits under the Executive Supplemental Life Program under the terms of the applicable plan or program as of the Date of Termination, calculated as if the Executive was fully vested as of the Date of Termination. The lump sum present value, assuming commencement at age 50 or age as of the Date of Termination occurs or if later, will be determined using the interest rate applicable to lump sum payments in the Cinergy Corp. Non-Union Employees' Pension Plan or any successor to that plan for the plan year that includes the Date of Termination. To the extent no such interest rate is provided therein, the annual interest rate applicable under section 417(e)(3) of the Code, or any successor provision thereto, for the second full calendar month preceding the first day of the calendar year that in which includes the Change in Control occurs; andDate of Termination will be used. This lump sum will be paid within thirty (30) days of the Date of Termination.
(23) The Executive shall be fully vested in his accrued benefits as of the Date of Termination under the Executive Retirement Plans, and his accrued benefits thereunder will be calculated as if the Executive was credited with three (3) additional years of age and service as of the Date of Termination. However, Cinergy will not commence payment of such benefits until the Executive has attained age 50. For purposes of determining benefits under the Executive Retirement Plans, the definition of earnings will be the same as defined in such plans.
(4) For a thirty-six (36) month period after the Date of Termination, Cinergy will arrange to provide to the Executive with and/or the Executive's dependents life, disability, accident, and health insurance benefits substantially similar to those that the Executive is and/or the Executive's dependents are receiving immediately prior to the Notice of Termination at a substantially similar cost to the Executive (without giving effect to any reduction in those benefits subsequent to a Change in Control that constitutes Good Reason), except for any benefits that were waived by the Executive in writing. If Cinergy arranges to provide the Executive and/or the Executive's dependents with life, disability, accident, and health insurance benefits, those benefits will be reduced to the extent comparable benefits are actually received by or made available to the Executive without cost and/or the Executive's dependents during the thirty-six (36) month period following the Executive's Date of Termination. The Executive must report to Cinergy any such benefits that he or his dependents actually receives. In lieu of the benefits described in the preceding sentences, Cinergy, in its sole discretion, may elect to pay to the Executive a lump sum cash payment equal to thirty-six (36) times the monthly premiums (or in the case of a self funded plan, the cost of COBRA continuation coverage) that would have been paid by Cinergy to provide those benefits to the Executive and/or the Executive's dependents, grossed up for the effect of federal, state and local income taxes. Nothing in this Subparagraph 5a(iii)(25a(iii)(4) will affect the Executive's right to elect COBRA continuation coverage in accordance with applicable law, and Cinergy will make the payment described in this Clause whether or not the Executive elects COBRA continuation coverage, and whether or not the Executive receives health coverage from another employer.
(35) Ownership Title and ownership of the automobile assigned to the Executive by Cinergy will be transferred to the Executive within 30 thirty (30) days of the Date of Termination. The effect To the extent there is imputed income to the Executive resulting from the transfer of title, the Executive will receive a cash payment equal to the amount of federal, state and local income taxes resulting from this transfer will be grossed up for federal and state income taxes as soon as administratively feasible after the transfer is effective. At Cinergy's discretion, a cash payment of an equivalent value of the automobile and corresponding income taxes may be paid in lieu of the assignment of the automobile.
(46) Cinergy will provide tax counseling services through an agency selected by the Executive, not to exceed Fifteen Thousand Dollars fifteen thousand dollars ($15,000.00) in cost.
(7) Cinergy will provide annual dues and assessments of the Executive for membership in a country club selected by the Executive until the end of the Employment Period.
(8) Cinergy will provide outplacement services suitable to the Executive's position until the end of the Employment Period or, if earlier, until the first acceptance by the Executive of an offer of employment. At the Executive's discretion, 15% of Annual Base Salary may be paid in lieu of outplacement services. For purposes of this Paragraph (iii5a(iii), the Executive will be deemed to have incurred a Qualifying Termination following upon a Change in Control if the Executive's employment is terminated prior to a Change in Control, without Cause at the direction of a Person who has entered into an agreement with Cinergy, the consummation of which will constitute a Change in Control, or if the Executive terminates his employment for Good Reason prior to a Change in Control if the circumstances or event that constitutes Good Reason occurs at the direction of such a Person.
Appears in 2 contracts
Samples: Employment Agreement (Psi Energy Inc), Employment Agreement (Cinergy Corp)
Certain Terminations. (i) If a Qualifying Termination occurs during the Employment Period, Cinergy will pay to the Executive a lump sum amount, in cash, equal to the sum of the following Accrued Obligations:
(1) the pro-rated portion of the Executive's ’s Annual Base Salary payable through the Date of Termination Termination, to the extent not previously paid;.
(2) any amount payable to the Executive under the Annual Incentive Plan in respect of the most recently completed fiscal year, to the extent not theretofore paid.
(3) an amount equal to the AIP Benefit for the fiscal year that includes the Date of Termination multiplied by a fraction, the numerator of which is the number of days from the beginning of that fiscal year to and including the Date of Termination and the denominator of which is three hundred and sixty-five (365). The AIP Benefit component of the calculation will be determined using a percentage equal to the annual bonus that would have been earned by the Executive pursuant to any annual bonus or incentive plan maintained by Cinergy in respect of the fiscal year in which occurs the Date of Termination, determined by projecting Cinergy’s performance and other applicable goals and objectives for the Chief Executive Officer, in his discretion, up entire fiscal year based on Cinergy’s performance during the period of such fiscal year occurring prior to the maximum percentage specified in Subsection 3bDate of Termination, but no less than the Target Annual Bonusand based on such other assumptions and rates as Cinergy deems reasonable.
(34) any compensation previously deferred by the Executive (together with any accrued interest or earnings) and any accrued vacation pay, in each case to the extent not previously paid. The Accrued Obligations described in this Paragraph Section 5a(i) will be paid within thirty (30) days after the Date of Termination. These Accrued Obligations are payable to the Executive regardless of whether a Change in Control has occurred.
(ii) Prior In the event of a Qualifying Termination either prior to the occurrence of a Change in Control, and or more than twenty-four (24) months following the occurrence of a Change in the event of (A) a Termination other than by reason of the Executive's death, or (B) the Executive's termination of his employment during the Employment Period for Good ReasonControl, Cinergy will pay the Accrued Obligations, and Cinergy will have the following obligations:additional obligations described in this Section 5a(ii); provided, however, that each of the benefits described below in this Section 5a(ii) shall only be provided to the Executive if, upon presentation to the Executive following a Qualifying Termination, the Executive timely executes and does not timely revoke the Waiver and Release.
(1) Cinergy will pay to the Executive a lump sum amount, in cash, equal to three (3) times the sum of the Annual Base Salary and the AIP BenefitAnnual Bonus. For this purpose, the Annual Base Salary will be at the rate in effect at the time Notice of Termination is given (without giving effect to any reduction in Annual Base Salary, if any, prior to the termination, other than across-the-board reductions). The AIP Benefit will be determined using a percentage determined by , and shall include the Chief amount of any Nonelective Employer Contributions made on behalf of the Executive Officer, in his discretion, which will not be less than under the Executive's annual target percentage for 401(k) Excess Plan during the fiscal year in which the Executive’s Qualifying Termination occurs, and the Annual Bonus will be the higher of (A) the annual bonus earned by the Executive pursuant to any annual bonus or incentive plan maintained by Cinergy in respect of the year ending immediately prior to the fiscal year in which occurs the Date of Termination, and will (B) the annual bonus that would have been earned by the Executive pursuant to any annual bonus or incentive plan maintained by Cinergy in respect of the fiscal year in which occurs the Date of Termination, calculated by projecting Cinergy’s performance and other applicable goals and objectives for the entire fiscal year based on Cinergy’s performance during the period of such fiscal year occurring prior to the Date of Termination, and based on such other assumptions and rates as Cinergy deems reasonable; provided, however that for purposes of this Section 5a(ii)(1)(B), the Annual Bonus shall not be less than the Target Annual Bonus, nor greater than the maximum percentage specified Maximum Annual Bonus for the year in Subsection 3bwhich the Date of Termination occurs. This lump sum will be paid within thirty (30) days after the expiration of the Date of Terminationrevocation period contained in the Waiver and Release.
(2) Cinergy will pay Subject to the Executive the value of all deferred compensation amounts and all executive life insurance benefits whether or not they are otherwise currently vested or payable. Payment will be made in accordance with the terms of the applicable plan or program.
(3) Except as provided under Clauses (A), (B) and (BC) below, Cinergy will continueprovide, until the end of the Employment Period, medical and dental benefits to the Executive and/or the Executive's family ’s dependents at least equal to those that would have been provided if the Executive's ’s employment had not been terminated (excluding benefits to which the Executive has waived his rights in writing). The benefits described in the preceding sentence will be in accordance with the medical and welfare benefit plans, practices, programs, or policies of Cinergy (the "“M&W Plans"”) as then currently in effect and applicable generally to other Cinergy senior executives and their families. In the event that any medical or dental benefits or payments provided pursuant to this Section 5a(ii)(2)(B) are subject to federal, state, or local income or employment taxes, Cinergy shall provide the Executive with an additional payment in the amount necessary such that after payment by the Executive of all such taxes (calculated after assuming that the Executive pays such taxes for the year in which the payment or benefit occurs at the highest marginal tax rate applicable), including the taxes imposed on the additional payment, the Executive retains an amount equal to the medical or dental benefits or payments provided pursuant to this Section 5a(ii)(2)(B).
(A) If, as of the Executive's ’s Date of Termination, the Executive meets the eligibility requirements for Cinergy's ’s retiree medical and welfare benefit plans, the provision of those retiree medical and welfare benefit plans to the Executive will satisfy Cinergy's ’s obligation under this Subparagraph 5a(ii)(3Section 5a(ii)(2).
(B) If, as of the Executive's ’s Date of Termination, the provision to the Executive of the M&W Plan benefits described in this Subparagraph 5a(ii)(3Section 5a(ii)(2) would either (1) violate the terms of the M&W Plans (or any related insurance policies) or (2) violate any of the Code's ’s nondiscrimination requirements applicable to the M&W Plans, then Cinergy, in its sole discretion, may elect to pay the Executive, in lieu of the M&W Plan benefits described under this Subparagraph 5a(ii)(3Section 5a(ii)(2), a lump sum cash payment equal to the total monthly premiums (or in the case of a self funded plan, the cost of COBRA continuation coverage) that would have been paid by Cinergy for the Executive under the M&W Plans from the Date of Termination through the end of the Employment Period. Nothing in this Clause will affect the Executive's ’s right to elect COBRA continuation coverage under a M&W Plan in accordance with applicable law, and Cinergy will make the payment described in this Clause whether or not the Executive elects COBRA continuation coverage, and whether or not the Executive receives health coverage from another employer.
(C) If the Executive becomes employed by another employer and is eligible to receive medical or other welfare benefits under another employer-provided plan, any benefits provided to the Executive under the M&W Plans will be secondary to those provided under the other employer-provided plan during the Executive's ’s applicable period of eligibility.
(4) Ownership of the automobile assigned to the Executive by Cinergy will be transferred to the Executive within 30 days of the Date of Termination. The effect of this transfer will be grossed up for federal and state income taxes as soon as administratively feasible after the transfer is effective.
(53) Cinergy will provide pay the Executive a lump sum amount, in cash, equal to $15,000 in order to cover tax counseling services through an agency selected by the Executive. In the event any payment to the Executive pursuant to this Section 5a(ii)(3) is subject to any federal, not state, or local income or employment taxes, Cinergy shall provide to exceed Fifteen Thousand Dollars the Executive an additional payment in an amount necessary such that after payment by the Executive of all such taxes ($15,000.00calculated after assuming that the Executive pays such taxes for the year in which his Date of Termination occurs at the highest marginal tax rate applicable), including the taxes imposed on the additional payment, the Executive retains an amount equal to the payment provided pursuant to this Section 5a(ii)(3). Such payment will be transferred to the Executive within thirty (30) days of the expiration of the revocation period contained in costthe Waiver and Release.
(iii) In the event of a Qualifying Termination by Cinergy or by the Executive for Good Reason upon or during the twenty-four (24) month period after beginning upon the occurrence of a Change in Control, then Cinergy will pay the Accrued Obligations listed in lieu of any further salary payments to the Executive for periods subsequent to the Date of Termination Sections 5a(i)(1) and in lieu of any other benefits payable pursuant to Paragraph 5a(ii(2), Cinergy will pay the Accrued Obligations listed in Section 5a(i)(3) (but only if such Qualifying Termination occurs after the calendar year in which occurs such Change in Control) and Cinergy will have the following obligations:additional obligations described in this Section 5a(iii); provided, however, that each of the benefits described below in this Section 5a(iii) shall only be provided to the Executive if, upon presentation to the Executive following a Qualifying Termination, the Executive timely executes and does not timely revoke the Waiver and Release.
(1) Cinergy will pay to the Executive a lump sum severance payment, in cash, equal to the greater of:
(A) the present value of all amounts and benefits that would have been due under Paragraph 5a(ii), excluding Subparagraphs 5a(ii)(3), 5a(ii)(4), and 5a(ii)(5), or
(B) three (3) times the sum higher of (x) the higher sum of the Executive's ’s current Annual Base Salary and Target Annual Bonus and (y) the sum of the Executive’s Annual Base Salary in effect immediately prior to the occurrence of the event or circumstance upon which the Notice of Termination is based or in effect immediately prior to the Change in Control, and (y) the higher of the amount paid to the Executive pursuant to all annual incentive compensation or bonus plans or programs maintained by Cinergy in the year preceding that in which the Date of Termination occurs or in the year preceding that in which the Change in Control occurs; and
(2) For a thirty-six (36) month period after and the Date of Termination, Cinergy will arrange to provide the Executive with life, disability, accident, and health insurance benefits substantially similar to those that the Executive is receiving immediately prior to the Notice of Termination (without giving effect to any reduction in those benefits subsequent to a Change in Control that constitutes Good Reason), except for any benefits that were waived by the Executive in writing. If Cinergy arranges to provide the Executive with life, disability, accident, and health insurance benefits, those benefits will be reduced to the extent comparable benefits are actually received by or made available to the Executive without cost during the thirty-six (36) month period following the Executive's Date of Termination. The Executive must report to Cinergy any such benefits that he actually receives. In lieu of the benefits described in the preceding sentences, Cinergy, in its sole discretion, may elect to pay to the Executive a lump sum cash payment equal to thirty-six (36) times the monthly premiums that would have been paid by Cinergy to provide those benefits to the Executive. Nothing in this Subparagraph 5a(iii)(2) will affect the Executive's right to elect COBRA continuation coverage in accordance with applicable law.
(3) Ownership of the automobile assigned to the Executive by Cinergy will be transferred to the Executive within 30 days of the Date of Termination. The effect of this transfer will be grossed up for federal and state income taxes as soon as administratively feasible after the transfer is effective.
(4) Cinergy will provide tax counseling services through an agency selected by the Executive, not to exceed Fifteen Thousand Dollars ($15,000.00) in cost. For purposes of this Paragraph (iii), the Executive will be deemed to have incurred a Termination following a Change in Control if the Executive's employment is terminated prior to a Change in Control, without Cause at the direction of a Person who has entered into an agreement with Cinergy, the consummation of which will constitute a Change in Control, or if the Executive terminates his employment for Good Reason prior to a Change in Control if the circumstances or event that constitutes Good Reason occurs at the direction of such a Person.in
Appears in 1 contract
Samples: Employment Agreement (Cincinnati Gas & Electric Co)
Certain Terminations. (i) If a Termination occurs during the Employment Period, Cinergy will pay to the Executive a lump sum amount, in cash, equal to the sum of the following Accrued Obligations:
(1) the Executive's Annual Base Salary through the Date of Termination to the extent not previously paid;
(2) an amount equal to the AIP Benefit for the fiscal year that includes the Date of Termination multiplied by a fraction, the numerator of which is the number of days from the beginning of that fiscal year to and including the Date of Termination and the denominator of which is three hundred and sixty-five (365). The AIP Benefit will be determined using a percentage determined by the Chief Executive Officer, in his her discretion, up to the maximum percentage specified in Subsection 3b, but no less than the Target Annual Bonus.
(3) any compensation previously deferred by the Executive (together with any accrued interest or earnings) and any accrued vacation pay, in each case to the extent not previously paid. The Accrued Obligations described in this Paragraph 5a(i) will be paid within thirty (30) days after the Date of Termination. These Accrued Obligations are payable to the Executive regardless of whether a Change in Control has occurred.
(ii) Prior to the occurrence of a Change in Control, and in the event of (A) a Termination other than by reason of the Executive's death, or (B) the Executive's termination of his her employment during the Employment Period for Good Reason, Cinergy will pay the Accrued Obligations, and Cinergy will have the following obligations:
(1) Cinergy will pay to the Executive a lump sum amount, in cash, equal to three (3) times the sum of the Annual Base Salary and the AIP Benefit. For this purpose, the Annual Base Salary will be at the rate in effect at the time Notice of Termination is given (without giving effect to any reduction in Annual Base Salary, if any, prior to the termination). The AIP Benefit will be determined using a percentage determined by the Chief Executive Officer, in his her discretion, which will not be less than the Executive's annual target percentage for the fiscal year in which the Termination occurs and will not be greater than the maximum percentage specified in Subsection 3b. This lump sum will be paid within thirty (30) days of the Date of Termination.
(2) If the Executive terminates employment prior to reaching age 50, Cinergy will pay to the Executive the value of all deferred compensation amounts previously deferred by the Executive whether or not they are otherwise currently payable. Cinergy will also pay to the Executive the present value (discounted at the Prime Rate) of all amounts to which the Executive would have been entitled had she remained in employment with Cinergy until the end of the Employment Period under the Executive Supplemental Life Program. If the Executive terminates employment on or after reaching age 50, Cinergy will pay to the Executive the value of all deferred compensation amounts and all executive life insurance benefits whether or not they are otherwise currently vested or payable. Payment will be made in accordance with the terms of the applicable plan or program.
(3) Except as provided under Clauses (A) and (B) below, Cinergy will continue, until the end of the Employment Period, medical and dental benefits to the Executive and/or the Executive's family at least equal to those that would have been provided if the Executive's employment had not been terminated (excluding benefits to which the Executive has waived his her rights in writing). The benefits described in the preceding sentence will be in accordance with the medical and welfare benefit plans, practices, programs, or policies of Cinergy (the "M&W Plans") as then currently in effect and applicable generally to other Cinergy senior executives and their families.
(A) If, as of the Executive's Date of Termination, the Executive meets the eligibility requirements for Cinergy's retiree medical and welfare benefit plans, the provision of those retiree medical and welfare benefit plans to the Executive will satisfy Cinergy's obligation under this Subparagraph 5a(ii)(3).
(B) If, as of the Executive's Date of Termination, the provision to the Executive of the M&W Plan benefits described in this Subparagraph 5a(ii)(3) would either (1) violate the terms of the M&W Plans or (2) violate any of the Code's nondiscrimination requirements applicable to the M&W Plans, then Cinergy, in its sole discretion, may elect to pay the Executive, in lieu of the M&W Plan benefits described under this Subparagraph 5a(ii)(3), a lump sum cash payment equal to the total monthly premiums that would have been paid by Cinergy for the Executive under the M&W Plans from the Date of Termination through the end of the Employment Period. Nothing in this Clause will affect the Executive's right to elect COBRA continuation coverage under a M&W Plan in accordance with applicable law.
(C) If the Executive becomes employed by another employer and is eligible to receive medical or other welfare benefits under another employer-provided plan, any benefits provided to the Executive under the M&W Plans will be secondary to those provided under the other employer-provided plan during the Executive's applicable period of eligibility.
(4) Ownership of the automobile assigned to the Executive by Cinergy will be transferred to the Executive within 30 days of the Date of Termination. The effect of this transfer will be grossed up for federal and state income taxes as soon as administratively feasible after the transfer is effective.
(5) Cinergy will provide tax counseling services through an agency selected by the Executive, not to exceed Fifteen Thousand Dollars ($15,000.00) in cost.
(iii) In the event of Termination by Cinergy or by the Executive for Good Reason upon or during the twenty-four (24) month period after the occurrence of a Change in Control, then in lieu of any further salary payments to the Executive for periods subsequent to the Date of Termination and in lieu of any other benefits payable pursuant to Paragraph 5a(ii), Cinergy will have the following obligations:
(1) Cinergy will pay to the Executive a lump sum severance payment, in cash, equal to the greater of:
(A) the present value of all amounts and benefits that would have been due under Paragraph 5a(ii), excluding Subparagraphs 5a(ii)(3), 5a(ii)(4), and 5a(ii)(5), or
(B) three (3) times the sum of (x) the higher of the Executive's Annual Base Salary in effect immediately prior to the occurrence of the event or circumstance upon which the Notice of Termination is based or in effect immediately prior to the Change in Control, and (y) the higher of the amount paid to the Executive pursuant to all annual incentive compensation or bonus plans or programs maintained by Cinergy in the year preceding that in which the Date of Termination occurs or in the year preceding that in which the Change in Control occurs; and
(2) For a thirty-six (36) month period after the Date of Termination, Cinergy will arrange to provide the Executive with life, disability, accident, and health insurance benefits substantially similar to those that the Executive is receiving immediately prior to the Notice of Termination (without giving effect to any reduction in those benefits subsequent to a Change in Control that constitutes Good Reason), except for any benefits that were waived by the Executive in writing. If Cinergy arranges to provide the Executive with life, disability, accident, and health insurance benefits, those benefits will be reduced to the extent comparable benefits are actually received by or made available to the Executive without cost during the thirty-six (36) month period following the Executive's Date of Termination. The Executive must report to Cinergy any such benefits that he she actually receives. In lieu of the benefits described in the preceding sentences, Cinergy, in its sole discretion, may elect to pay to the Executive a lump sum cash payment equal to thirty-six (36) times the monthly premiums that would have been paid by Cinergy to provide those benefits to the Executive. Nothing in this Subparagraph 5a(iii)(2) will affect the Executive's right to elect COBRA continuation coverage in accordance with applicable law.
(3) Ownership of the automobile assigned to the Executive by Cinergy will be transferred to the Executive within 30 days of the Date of Termination. The effect of this transfer will be grossed up for federal and state income taxes as soon as administratively feasible after the transfer is effective.
(4) Cinergy will provide tax counseling services through an agency selected by the Executive, not to exceed Fifteen Thousand Dollars ($15,000.00) in cost. For purposes of this Paragraph (iii), the Executive will be deemed to have incurred a Termination following a Change in Control if the Executive's employment is terminated prior to a Change in Control, without Cause at the direction of a Person who has entered into an agreement with Cinergy, the consummation of which will constitute a Change in Control, or if the Executive terminates his her employment for Good Reason prior to a Change in Control if the circumstances or event that constitutes Good Reason occurs at the direction of such a Person.
Appears in 1 contract
Certain Terminations. (i) If a Termination occurs during the Employment Period, Cinergy will pay to the Executive a lump sum amount, in cash, equal to the sum of the following Accrued Obligations:
(1) the Executive's Annual Base Salary through the Date of Termination to the extent not previously paid;
(2) an amount equal to the AIP Benefit for the fiscal year that includes the Date of Termination multiplied by a fraction, the numerator of which is the number of days from the beginning of that fiscal year to and including the Date of Termination and the denominator of which is three hundred and sixty-five (365). The AIP Benefit will be determined using a percentage determined by the Chief Executive Officer, in his discretion, up to the maximum percentage specified in Subsection 3b, but no less than the Target Annual Bonus.
(3) any compensation previously deferred by the Executive (together with any accrued interest or earnings) and any accrued vacation pay, in each case to the extent not previously paid. The Accrued Obligations described in this Paragraph 5a(i) will be paid within thirty (30) days after the Date of Termination. These Accrued Obligations are payable to the Executive regardless of whether a Change in Control has occurred.
(ii) Prior to the occurrence of a Change in Control, and in the event of (A) a Termination other than by reason of the Executive's death, or (B) the Executive's termination of his employment during the Employment Period for Good Reason, Cinergy will pay the Accrued Obligations, and Cinergy will have the following obligations:
(1) Cinergy will pay to the Executive a lump sum amount, in cash, equal to three (3) times the sum of the Annual Base Salary and the AIP Benefit. For this purpose, the Annual Base Salary will be at the rate in effect at the time Notice of Termination is given (without giving effect to any reduction in Annual Base Salary, if any, prior to the termination). The AIP Benefit will be determined using a percentage determined by the Chief Executive Officer, in his discretion, which will not be less than the Executive's annual target percentage for the fiscal year in which the Termination occurs and will not be greater than the maximum percentage specified in Subsection 3b. This lump sum will be paid within thirty (30) days of the Date of Termination.
(2) If the Executive terminates employment prior to reaching age 50, Cinergy will pay to the Executive the value of all deferred compensation amounts previously deferred by the Executive whether or not they are otherwise currently payable. Cinergy will also pay to the Executive the present value (discounted at the Prime Rate) of all amounts to which the Executive would have been entitled had he remained in employment with Cinergy until the end of the Employment Period under the Executive Supplemental Life Program. If the Executive terminates employment on or after reaching age 50, Cinergy will pay to the Executive the value of all deferred compensation amounts and all executive life insurance benefits whether or not they are otherwise currently vested or payable. Payment will be made in accordance with the terms of the applicable plan or program.
(3) Except as provided under Clauses (A) and (B) below, Cinergy will continue, until the end of the Employment Period, medical and dental benefits to the Executive and/or the Executive's family at least equal to those that would have been provided if the Executive's employment had not been terminated (excluding benefits to which the Executive has waived his rights in writing). The benefits described in the preceding sentence will be in accordance with the medical and welfare benefit plans, practices, programs, or policies of Cinergy (the "M&W Plans") as then currently in effect and applicable generally to other Cinergy senior executives and their families.
(A) If, as of the Executive's Date of Termination, the Executive meets the eligibility requirements for Cinergy's retiree medical and welfare benefit plans, the provision of those retiree medical and welfare benefit plans to the Executive will satisfy Cinergy's obligation under this Subparagraph 5a(ii)(3).
(B) If, as of the Executive's Date of Termination, the provision to the Executive of the M&W Plan benefits described in this Subparagraph 5a(ii)(3) would either (1) violate the terms of the M&W Plans or (2) violate any of the Code's nondiscrimination requirements applicable to the M&W Plans, then Cinergy, in its sole discretion, may elect to pay the Executive, in lieu of the M&W Plan benefits described under this Subparagraph 5a(ii)(35a(ii) (3), a lump sum cash payment equal to the total monthly premiums that would have been paid by Cinergy for the Executive under the M&W Plans from the Date of Termination through the end of the Employment Period. Nothing in this Clause will affect the Executive's right to elect COBRA continuation coverage under a M&W Plan in accordance with applicable law.
(C) If the Executive becomes employed by another employer and is eligible to receive medical or other welfare benefits under another employer-provided plan, any benefits provided to the Executive under the M&W Plans will be secondary to those provided under the other employer-provided plan during the Executive's applicable period of eligibility.
(4) Ownership of the automobile assigned to the Executive by Cinergy will be transferred to the Executive within 30 days of the Date of Termination. The effect of this transfer will be grossed up for federal and state income taxes as soon as administratively feasible after the transfer is effective.
(5) Cinergy will provide tax counseling services through an agency selected by the Executive, not to exceed Fifteen Thousand Dollars ($15,000.00) in cost.
(iii) In the event of Termination by Cinergy or by the Executive for Good Reason upon or during the twenty-four (24) month period after the occurrence of a Change in Control, then in lieu of any further salary payments to the Executive for periods subsequent to the Date of Termination and in lieu of any other benefits payable pursuant to Paragraph 5a(ii), Cinergy will have the following obligations:
(1) Cinergy will pay to the Executive a lump sum severance payment, in cash, equal to the greater of:
(A) the present value of all amounts and benefits that would have been due under Paragraph 5a(ii), excluding Subparagraphs 5a(ii)(3), 5a(ii)(4), and 5a(ii)(5), or
(B) three (3) times the sum of (x) the higher of the Executive's Annual Base Salary in effect immediately prior to the occurrence of the event or circumstance upon which the Notice of Termination is based or in effect immediately prior to the Change in Control, and (y) the higher of the amount paid to the Executive pursuant to all annual incentive compensation or bonus plans or programs maintained by Cinergy in the year preceding that in which the Date of Termination occurs or in the year preceding that in which the Change in Control occurs; and
(2) For a thirty-six (36) month period after the Date of Termination, Cinergy will arrange to provide the Executive with life, disability, accident, and health insurance benefits substantially similar to those that the Executive is receiving immediately prior to the Notice of Termination (without giving effect to any reduction in those benefits subsequent to a Change in Control that constitutes Good Reason), except for any benefits that were waived by the Executive in writing. If Cinergy arranges to provide the Executive with life, disability, accident, and health insurance benefits, those benefits will be reduced to the extent comparable benefits are actually received by or made available to the Executive without cost during the thirty-six (36) month period following the Executive's Date of Termination. The Executive must report to Cinergy any such benefits that he actually receives. In lieu of the benefits described in the preceding sentences, Cinergy, in its sole discretion, may elect to pay to the Executive a lump sum cash payment equal to thirty-six (36) times the monthly premiums that would have been paid by Cinergy to provide those benefits to the Executive. Nothing in this Subparagraph 5a(iii)(2) will affect the Executive's right to elect COBRA continuation coverage in accordance with applicable law.
(3) Ownership of the automobile assigned to the Executive by Cinergy will be transferred to the Executive within 30 days of the Date of Termination. The effect of this transfer will be grossed up for federal and state income taxes as soon as administratively feasible after the transfer is effective.
(4) Cinergy will provide tax counseling services through an agency selected by the Executive, not to exceed Fifteen Thousand Dollars ($15,000.00) in cost. For purposes of this Paragraph (iii), the Executive will be deemed to have incurred a Termination following a Change in Control if the Executive's employment is terminated prior to a Change in Control, without Cause at the direction of a Person who has entered into an agreement with Cinergy, the consummation of which will constitute a Change in Control, or if the Executive terminates his employment for Good Reason prior to a Change in Control if the circumstances or event that constitutes Good Reason occurs at the direction of such a Person.
Appears in 1 contract
Certain Terminations. (i) If a Qualifying Termination occurs during the Employment Period, Cinergy will pay to the Executive a lump sum amount, in cash, equal to the sum of the following Accrued Obligations:
(1) the pro-rated portion of the Executive's Annual Base Salary payable through the Date of Termination Termination, to the extent not previously paid;.
(2) any amount payable to the Executive under the Annual Incentive Plan in respect of the most recently completed fiscal year, to the extent not theretofore paid.
(3) an amount equal to the AIP Benefit for the fiscal year that includes the Date of Termination multiplied by a fraction, the numerator of which is the number of days from the beginning of that fiscal year to and including the Date of Termination and the denominator of which is three hundred and sixty-five (365). The AIP Benefit component of the calculation will be determined using a percentage equal to the annual bonus that would have been earned by the Executive pursuant to any annual bonus or incentive plan maintained by Cinergy in respect of the fiscal year in which occurs the date of determination, determined by projecting Cinergy's performance and other applicable goals and objectives for the Chief Executive Officer, in his discretion, up entire fiscal year based on Cinergy's performance during the period of such fiscal year occurring prior to the maximum percentage specified in Subsection 3bDate of Termination, but no less than the Target Annual Bonusand based on such other assumptions and rates as Cinergy deems reasonable.
(34) any compensation previously deferred by the Executive (together with any accrued interest or earnings) and any accrued vacation pay, in each case to the extent not previously paid. The Accrued Obligations described in this Paragraph 5a(i) will be paid within thirty (30) days after the Date of Termination. These Accrued Obligations are payable to the Executive regardless of whether a Change in Control has occurred.
(ii) Prior In the event of a Qualifying Termination either prior to the occurrence of a Change in Control, and or more than twenty-four (24) months following the occurrence of a Change in the event of (A) a Termination other than by reason of the Executive's death, or (B) the Executive's termination of his employment during the Employment Period for Good ReasonControl, Cinergy will pay the Accrued Obligations, and Cinergy will have the following additional obligations:
(1) Cinergy will pay to the Executive a lump sum amount, in cash, equal to three (3) times the sum of the Annual Base Salary and the AIP BenefitAnnual Bonus. For this purpose, the Annual Base Salary will be at the rate in effect at the time Notice of Termination is given (without giving effect to any reduction in Annual Base Salary, if any, prior to the termination, other than across-the-board reductions). The AIP Benefit , and the Annual Bonus will be determined using a percentage determined the higher of (A) the annual bonus earned by the Chief Executive Officerpursuant to any annual bonus or incentive plan maintained by Cinergy in respect of the year ending immediately prior to the fiscal year in which occurs the Date of Termination, and (B) the annual bonus that would have been earned by the Executive pursuant to any annual bonus or incentive plan maintained by Cinergy in his discretionrespect of the fiscal year in which occurs the Date of Termination, which will calculated by projecting Cinergy's performance and other applicable goals and objectives for the entire fiscal year based on Cinergy's performance during the period of such fiscal year occurring prior to the Date of Termination, and based on such other assumptions and rates as Cinergy deems reasonable; provided, however that for purposes of this Subsection 5a(ii)(1)(B), the Annual Bonus shall not be less than the Executive's annual target percentage Annual Target Bonus, nor greater than the Maximum Target Bonus for the fiscal year in which the Date of Termination occurs and will not be greater than the maximum percentage specified in Subsection 3boccurs. This lump sum will be paid within thirty (30) days of the Date of Termination.
(2) Cinergy will pay Subject to the Executive the value of all deferred compensation amounts and all executive life insurance benefits whether or not they are otherwise currently vested or payable. Payment will be made in accordance with the terms of the applicable plan or program.
(3) Except as provided under Clauses (A), (B) and (BC) below, Cinergy will continueprovide, until the end of the Employment Period, medical and dental benefits to the Executive and/or the Executive's family dependents at least equal to those that would have been provided if the Executive's employment had not been terminated (excluding benefits to which the Executive has waived his rights in writing). The benefits described in the preceding sentence will be in accordance with the medical and welfare benefit plans, practices, programs, or policies of Cinergy (the "M&W Plans") as then currently in effect and applicable generally to other Cinergy senior executives and their families.
(A) If, as of the Executive's Date of Termination, the Executive meets the eligibility requirements for Cinergy's retiree medical and welfare benefit plans, the provision of those retiree medical and welfare benefit plans to the Executive will satisfy Cinergy's obligation under this Subparagraph 5a(ii)(35a(ii)(2).
(B) If, as of the Executive's Date of Termination, the provision to the Executive of the M&W Plan benefits described in this Subparagraph 5a(ii)(35a(ii)(2) would either (1) violate the terms of the M&W Plans (or any related insurance policies) or (2) violate any of the Code's nondiscrimination requirements applicable to the M&W Plans, then Cinergy, in its sole discretion, may elect to pay the Executive, in lieu of the M&W Plan benefits described under this Subparagraph 5a(ii)(35a(ii)(2), a lump sum cash payment equal to the total monthly premiums (or in the case of a self funded plan, the cost of COBRA continuation coverage) that would have been paid by Cinergy for the Executive under the M&W Plans from the Date of Termination through the end of the Employment Period, grossed up for the effect of federal, state and local income taxes. Nothing in this Clause will affect the Executive's right to elect COBRA continuation coverage under a M&W Plan in accordance with applicable law, and Cinergy will make the payment described in this Clause whether or not the Executive elects COBRA continuation coverage, and whether or not the Executive receives health coverage from another employer.
(C) If the Executive becomes employed by another employer and is eligible to receive medical or other welfare benefits under another employer-provided plan, any benefits provided to the Executive under the M&W Plans will be secondary to those provided under the other employer-provided plan during the Executive's applicable period of eligibility.
(3) Cinergy will provide tax-counseling services through an agency selected by the Executive, not to exceed fifteen thousand dollars ($15,000.00) in cost.
(4) Ownership Title and ownership of the automobile assigned to the Executive by Cinergy will be transferred to the Executive within 30 thirty (30) days of the Date of Termination. The effect To the extent there is imputed income to the Executive resulting from the transfer of title, the Executive will receive a cash payment equal to the amount of federal, state and local income taxes resulting from this transfer will be grossed up for federal and state income taxes as soon as administratively feasible after the transfer is effective.
(5) Cinergy will provide tax counseling services through . At Cinergy's discretion, a cash payment of an agency selected by equivalent value of the Executive, not to exceed Fifteen Thousand Dollars ($15,000.00) automobile and corresponding income taxes may be paid in costlieu of the assignment of the automobile.
(iii) In the event of a Qualifying Termination by Cinergy or by the Executive for Good Reason upon or during the twenty-four (24) month period after beginning upon the occurrence of a Change in Control, then in lieu of any further salary payments to the Executive for periods subsequent to the Date of Termination and in lieu of any other benefits payable pursuant to Paragraph 5a(ii), Cinergy will pay the Accrued Obligations, and Cinergy will also have the following additional obligations:
(1) Cinergy will pay to the Executive a lump sum severance payment, in cash, equal to the greater of:
(A) the present value of all amounts and benefits that would have been due under Paragraph 5a(ii), excluding Subparagraphs 5a(ii)(3), 5a(ii)(4), and 5a(ii)(5), or
(B) three (3) times the sum higher of (x) the higher sum of the Executive's current Annual Base Salary and Target Annual Bonus and (y) the sum of the Executive's Annual Base Salary in effect immediately prior to the occurrence Change in Control and the Change in Control Bonus. For purposes of this Agreement, the Change in Control Bonus shall mean the higher of (A) the annual bonus earned by the Executive pursuant to any annual bonus or incentive plan maintained by Cinergy in respect of the event or circumstance upon which the Notice of Termination is based or in effect year ending immediately prior to the fiscal year in which occurs the Date of Termination or, if higher, immediately prior to the fiscal year in which occurs the Change in Control, and (yB) the higher of the amount paid to annual bonus that would have been earned by the Executive pursuant to all any annual bonus or incentive compensation or bonus plans or programs plan maintained by Cinergy in respect of the year preceding that in which occurs the Date of Termination, calculated by projecting Cinergy's performance and other applicable goals and objective for the entire fiscal year based on Cinergy's performance during the period of such fiscal year occurring prior to the Date of Termination, and based on such other assumptions and rates as Cinergy deems reasonable, provided, however, that for purposes of this Subsection 5a(iii)(1)(B), such Change in Control Annual Bonus shall not be less than the Annual Target Bonus, nor greater than the Maximum Target Bonus. This lump sum will be paid within thirty (30) days of the Date of Termination.
(2) Cinergy will pay to the Executive the lump sum present value of any benefits under the Executive Supplemental Life Program under the terms of the applicable plan or program as of the Date of Termination, calculated as if the Executive was fully vested as of the Date of Termination. The lump sum present value, assuming commencement at age 50 or age as of the Date of Termination occurs or if later, will be determined using the interest rate applicable to lump sum payments in the Cinergy Corp. Non-Union Employees' Pension Plan or any successor to that plan for the plan year that includes the Date of Termination. To the extent no such interest rate is provided therein, the annual interest rate applicable under section 417(e)(3) of the Code, or any successor provision thereto, for the second full calendar month preceding the first day of the calendar year that in which includes the Change in Control occurs; andDate of Termination will be used. This lump sum will be paid within thirty (30) days of the Date of Termination.
(23) The Executive shall be fully vested in his accrued benefits as of the Date of Termination under the Executive Retirement Plans, and his accrued benefits thereunder will be calculated as if the Executive was credited with three (3) additional years of age and service as of the Date of Termination. However, Cinergy will not commence payment of such benefits until the Executive has attained age 50. For purposes of determining benefits under the Executive Retirement Plans, the definition of earnings will be the same as defined in such plans.
(4) For a thirty-six (36) month period after the Date of Termination, Cinergy will arrange to provide to the Executive with and/or the Executive's dependents life, disability, accident, and health insurance benefits substantially similar to those that the Executive is and/or the Executive's dependents are receiving immediately prior to the Notice of Termination at a substantially similar cost to the Executive (without giving effect to any reduction in those benefits subsequent to a Change in Control that constitutes Good Reason), except for any benefits that were waived by the Executive in writing. If Cinergy arranges to provide the Executive and/or the Executive's dependents with life, disability, accident, and health insurance benefits, those benefits will be reduced to the extent comparable benefits are actually received by or made available to the Executive without cost and/or the Executive's dependents during the thirty-six (36) month period following the Executive's Date of Termination. The Executive must report to Cinergy any such benefits that he or his dependents actually receives. In lieu of the benefits described in the preceding sentences, Cinergy, in its sole discretion, may elect to pay to the Executive a lump sum cash payment equal to thirty-six (36) times the monthly premiums (or in the case of a self funded plan, the cost of COBRA continuation coverage) that would have been paid by Cinergy to provide those benefits to the Executive and/or the Executive's dependents, grossed up for the effect of federal, state and local income taxes. Nothing in this Subparagraph 5a(iii)(25a(iii)(4) will affect the Executive's right to elect COBRA continuation coverage in accordance with applicable law, and Cinergy will make the payment described in this Clause whether or not the Executive elects COBRA continuation coverage, and whether or not the Executive receives health coverage from another employer.
(35) Ownership Title and ownership of the automobile assigned to the Executive by Cinergy will be transferred to the Executive within 30 thirty (30) days of the Date of Termination. The effect To the extent there is imputed income to the Executive resulting from the transfer of title, the Executive will receive a cash payment equal to the amount of federal, state and local income taxes resulting from this transfer will be grossed up for federal and state income taxes as soon as administratively feasible after the transfer is effective. At Cinergy's discretion, a cash payment of an equivalent value of the automobile and corresponding income taxes may be paid in lieu of the assignment of the automobile.
(46) Cinergy will provide tax counseling services through an agency selected by the Executive, not to exceed Fifteen Thousand Dollars fifteen thousand dollars ($15,000.00) in cost.
(7) Cinergy will provide annual dues and assessments of the Executive for membership in a country club selected by the Executive until the end of the Employment Period.
(8) Cinergy will provide outplacement services suitable to the Executive's position until the end of the Employment Period or, if earlier, until the first acceptance by the Executive of an offer of employment. At the Executive's discretion, 15% of Annual Base Salary may be paid in lieu of outplacement services. For purposes of this Paragraph (iii5a(iii), the Executive will be deemed to have incurred a Qualifying Termination following upon a Change in Control if the Executive's employment is terminated prior to a Change in Control, without Cause at the direction of a Person who has entered into an agreement with Cinergy, the consummation of which will constitute a Change in Control, or if the Executive terminates his employment for Good Reason prior to a Change in Control if the circumstances or event that constitutes Good Reason occurs at the direction of such a Person.
Appears in 1 contract
Samples: Employment Agreement (Cinergy Corp)
Certain Terminations. (i) If a Qualifying Termination occurs during the Employment Period, Cinergy will pay to the Executive a lump sum amount, in cash, equal to the sum of the following Accrued Obligations:
(1) the pro-rated portion of the Executive's Annual Base Salary payable through the Date of Termination Termination, to the extent not previously paid;.
(2) any amount payable to the Executive under the Annual Incentive Plan in respect of the most recently completed fiscal year, to the extent not theretofore paid.
(3) an amount equal to the AIP Benefit for the fiscal year that includes the Date of Termination multiplied by a fraction, the numerator of which is the number of days from the beginning of that fiscal year to and including the Date of Termination and the denominator of which is three hundred and sixty-five (365). The AIP Benefit component of the calculation will be determined using a percentage equal to the annual bonus that would have been earned by the Executive pursuant to any annual bonus or incentive plan maintained by Cinergy in respect of the fiscal year in which occurs the Date of Termination, determined by projecting Cinergy's performance and other applicable goals and objectives for the Chief Executive Officer, in his discretion, up entire fiscal year based on Cinergy's performance during the period of such fiscal year occurring prior to the maximum percentage specified in Subsection 3bDate of Termination, but no less than the Target Annual Bonusand based on such other assumptions and rates as Cinergy deems reasonable.
(34) any compensation previously deferred by the Executive (together with any accrued interest or earnings) and any accrued vacation pay, in each case to the extent not previously paid. The Accrued Obligations described in this Paragraph 5a(i) will be paid within thirty (30) days after the Date of Termination. These Accrued Obligations are payable to the Executive regardless of whether a Change in Control has occurred.
(ii) Prior In the event of a Qualifying Termination either prior to the occurrence of a Change in Control, and or more than twenty-four (24) months following the occurrence of a Change in the event of (A) a Termination other than by reason of the Executive's death, or (B) the Executive's termination of his employment during the Employment Period for Good ReasonControl, Cinergy will pay the Accrued Obligations, and Cinergy will have the following additional obligations:
(1) Cinergy will pay to the Executive a lump sum amount, in cash, equal to three (3) times the sum of the Annual Base Salary and the AIP BenefitAnnual Bonus. For this purpose, the Annual Base Salary will be at the rate in effect at the time Notice of Termination is given (without giving effect to any reduction in Annual Base Salary, if any, prior to the termination, other than across-the-board reductions). The AIP Benefit , and the Annual Bonus will be determined using a percentage determined the higher of (A) the annual bonus earned by the Chief Executive Officerpursuant to any annual bonus or incentive plan maintained by Cinergy in respect of the year ending immediately prior to the fiscal year in which occurs the Date of Termination, and (B) the annual bonus that would have been earned by the Executive pursuant to any annual bonus or incentive plan maintained by Cinergy in his discretionrespect of the fiscal year in which occurs the Date of Termination, which will calculated by projecting Cinergy's performance and other applicable goals and objectives for the entire fiscal year based on Cinergy's performance during the period of such fiscal year occurring prior to the Date of Termination, and based on such other assumptions and rates as Cinergy deems reasonable; provided, however that for purposes of this Subsection 5a(ii)(1)(B), the Annual Bonus shall not be less than the Executive's annual target percentage Target Annual Bonus, nor greater than the Maximum Annual Bonus for the fiscal year in which the Date of Termination occurs and will not be greater than the maximum percentage specified in Subsection 3boccurs. This lump sum will be paid within thirty (30) days of the Date of Termination.
(2) Cinergy will pay Subject to the Executive the value of all deferred compensation amounts and all executive life insurance benefits whether or not they are otherwise currently vested or payable. Payment will be made in accordance with the terms of the applicable plan or program.
(3) Except as provided under Clauses (A), (B) and (BC) below, Cinergy will continueprovide, until the end of the Employment Period, medical and dental benefits to the Executive and/or the Executive's family dependents at least equal to those that would have been provided if the Executive's employment had not been terminated (excluding benefits to which the Executive has waived his rights in writing). The benefits described in the preceding sentence will be in accordance with the medical and welfare benefit plans, practices, programs, or policies of Cinergy (the "M&W Plans") as then currently in effect and applicable generally to other Cinergy senior executives and their families.
(A) If, as of the Executive's Date of Termination, the Executive meets the eligibility requirements for Cinergy's retiree medical and welfare benefit plans, the provision of those retiree medical and welfare benefit plans to the Executive will satisfy Cinergy's obligation under this Subparagraph 5a(ii)(35a(ii)(2).
(B) If, as of the Executive's Date of Termination, the provision to the Executive of the M&W Plan benefits described in this Subparagraph 5a(ii)(35a(ii)(2) would either (1) violate the terms of the M&W Plans (or any related insurance policies) or (2) violate any of the Code's nondiscrimination requirements applicable to the M&W Plans, then Cinergy, in its sole discretion, may elect to pay the Executive, in lieu of the M&W Plan benefits described under this Subparagraph 5a(ii)(35a(ii)(2), a lump sum cash payment equal to the total monthly premiums (or in the case of a self funded plan, the cost of COBRA continuation coverage) that would have been paid by Cinergy for the Executive under the M&W Plans from the Date of Termination through the end of the Employment Period, grossed up for the effect of federal, state and local income taxes. Nothing in this Clause will affect the Executive's right to elect COBRA continuation coverage under a M&W Plan in accordance with applicable law, and Cinergy will make the payment described in this Clause whether or not the Executive elects COBRA continuation coverage, and whether or not the Executive receives health coverage from another employer.
(C) If the Executive becomes employed by another employer and is eligible to receive medical or other welfare benefits under another employer-provided plan, any benefits provided to the Executive under the M&W Plans will be secondary to those provided under the other employer-provided plan during the Executive's applicable period of eligibility.
(4) Ownership of the automobile assigned to the Executive by Cinergy will be transferred to the Executive within 30 days of the Date of Termination. The effect of this transfer will be grossed up for federal and state income taxes as soon as administratively feasible after the transfer is effective.
(53) Cinergy will provide tax counseling services through an agency selected by the Executive, not to exceed Fifteen Thousand Dollars fifteen thousand dollars ($15,000.00) in cost.
(iii) In the event of a Qualifying Termination by Cinergy or by the Executive for Good Reason upon or during the twenty-four (24) month period after beginning upon the occurrence of a Change in Control, then in lieu of any further salary payments to the Executive for periods subsequent to the Date of Termination and in lieu of any other benefits payable pursuant to Paragraph 5a(ii), Cinergy will pay the Accrued Obligations, and Cinergy will also have the following additional obligations:
(1) Cinergy will pay to the Executive a lump sum severance payment, in cash, equal to the greater of:
(A) the present value of all amounts and benefits that would have been due under Paragraph 5a(ii), excluding Subparagraphs 5a(ii)(3), 5a(ii)(4), and 5a(ii)(5), or
(B) three (3) times the sum higher of (x) the higher sum of the Executive's current Annual Base Salary and Target Annual Bonus and (y) the sum of the Executive's Annual Base Salary in effect immediately prior to the occurrence Change in Control and the Change in Control Bonus. For purposes of this Agreement, the Change in Control Bonus shall mean the higher of (A) the annual bonus earned by the Executive pursuant to any annual bonus or incentive plan maintained by Cinergy in respect of the event or circumstance upon which the Notice of Termination is based or in effect year ending immediately prior to the fiscal year in which occurs the Date of Termination or, if higher, immediately prior to the fiscal year in which occurs the Change in Control, and (yB) the higher of the amount paid to annual bonus that would have been earned by the Executive pursuant to all any annual bonus or incentive compensation or bonus plans or programs plan maintained by Cinergy in respect of the year preceding that in which the Date of Termination occurs or in the year preceding that in which the Change in Control occurs; and
(2) For a thirty-six (36) month period after the Date of Termination, Cinergy will arrange to provide calculated by projecting Cinergy's performance and other applicable goals and objective for the Executive with life, disability, accident, and health insurance benefits substantially similar to those that entire fiscal year based on Cinergy's performance during the Executive is receiving immediately period of such fiscal year occurring prior to the Notice Date of Termination (without giving effect to any reduction in those benefits subsequent to a Termination, and based on such other assumptions and rates as Cinergy deems reasonable, provided, however, that for purposes of this Subsection 5a(iii)(1)(B), such Change in Control that constitutes Good Reason)Annual Bonus shall not be less than the Target Annual Bonus, except for any benefits that were waived by nor greater than the Executive in writingMaximum Annual Bonus. If Cinergy arranges to provide the Executive with life, disability, accident, and health insurance benefits, those benefits This lump sum will be reduced to the extent comparable benefits are actually received by or made available to the Executive without cost during the thirty-six paid within thirty (3630) month period following the Executive's Date of Termination. The Executive must report to Cinergy any such benefits that he actually receives. In lieu of the benefits described in the preceding sentences, Cinergy, in its sole discretion, may elect to pay to the Executive a lump sum cash payment equal to thirty-six (36) times the monthly premiums that would have been paid by Cinergy to provide those benefits to the Executive. Nothing in this Subparagraph 5a(iii)(2) will affect the Executive's right to elect COBRA continuation coverage in accordance with applicable law.
(3) Ownership of the automobile assigned to the Executive by Cinergy will be transferred to the Executive within 30 days of the Date of Termination. The effect of this transfer will be grossed up for federal and state income taxes as soon as administratively feasible after the transfer is effective.
(42) Cinergy will provide tax counseling services through an agency selected by the Executive, not pay to exceed Fifteen Thousand Dollars ($15,000.00) in cost. For purposes of this Paragraph (iii), the Executive will be deemed to have incurred a Termination following a Change in Control if the Executive's employment is terminated prior to a Change in Controllump sum present value of any benefits under the Executive Supplemental Life Program under the terms of the applicable plan or program as of the Date of Termination, without Cause at the direction of a Person who has entered into an agreement with Cinergy, the consummation of which will constitute a Change in Control, or calculated as if the Executive terminates his employment for Good Reason prior to a Change in Control if the circumstances or event that constitutes Good Reason occurs at the direction was fully vested as of such a Person.the
Appears in 1 contract
Samples: Employment Agreement (Cincinnati Gas & Electric Co)
Certain Terminations. Subject to Section 12(d) hereof:
(i) If a Termination occurs during the Employment Period, Cinergy will pay Employee’s employment is terminated by Duke Energy without “Cause” or by the Employee with “Good Reason” on or prior to the Executive second anniversary of the Effective Date, the Employee shall, consistent with the terms of Section 6 of the Progress CIC Plan, be entitled to the following severance payments and benefits:
(A) a cash lump sum amount, in cash, payment equal to the sum of the following Accrued Obligations:
(1w) the Executive's any earned but unpaid Annual Base Salary through the Date of Termination, (x) any of the Employee’s business expenses that are reimbursable, but have not been reimbursed as of the Date of Termination, (y) the Employee’s annual cash bonus for the fiscal year immediately preceding the fiscal year in which the Date of Termination occurs, if such annual cash bonus has not been paid as of the Date of Termination and (z) any accrued vacation pay to the extent not previously paidtheretofore paid (the sum of the amounts described in subclauses (w), (x), (y) and (z), the “Accrued Obligations”);
(2B) an amount a cash lump sum payment equal to 300% of the AIP Benefit for sum of (x) Annual Base Salary and (y) the fiscal greater of (1) the average annual cash bonus paid to the Employee with respect to the three completed calendar years immediately preceding the year that includes during which the Date of Termination multiplied by a fractionoccurs (including years during which the Employee was an employee of Progress); provided, however, that if the Employee was not eligible to receive an annual cash bonus with respect to each of the three calendar years immediately preceding the year in which the Date of Termination occurs, the numerator average shall be determined for that period of calendar years, if any, for which is the number Employee was eligible to receive an annual cash bonus, or (2) the Target Bonus Opportunity for the year during which the Date of days from Termination occurs;
(C) Duke Energy shall pay the beginning total cost for continued participation under the applicable medical, dental, vision and life insurance plans in which the Employee participated immediately prior to the termination of that fiscal year to and including his employment until the earlier of the third anniversary of the Date of Termination and the denominator date or dates that the Employee receives comparable coverage and benefits under the plans, programs and/or arrangements of a subsequent employer;
(D) a cash lump sum payment equal to 100% of his Target Bonus Opportunity for the year during which is three hundred the Date of Termination occurs;
(E) all outstanding unvested stock options and sixty-five restricted stock units shall vest immediately and each performance share award outstanding at the time of termination shall vest at target level;
(365). The AIP Benefit will be determined using a percentage determined F) vesting of any awards which have been granted to the Employee by the Chief Executive OfficerCompany or any of its Affiliates under any incentive compensation plan, in his discretion, up program or agreement (other than those plans or agreements specified above) prior to the maximum percentage specified in Subsection 3b, but no less than the Target Annual Bonus.
(3) any compensation previously deferred by the Executive (together with any accrued interest or earnings) and any accrued vacation pay, in each case to the extent not previously paid. The Accrued Obligations described in this Paragraph 5a(i) will be paid within thirty (30) days after the Date of Termination. These Accrued Obligations are payable to the Executive regardless ; and
(G) payment of whether a Change accrued benefits in Control has occurredall accrued nonqualified deferred compensation plans.
(ii) Prior If the Employee’s employment is terminated by Duke Energy without “Cause” or by the Employee with “Good Reason” following the second anniversary of the Effective Date and on or prior to the occurrence third anniversary of a Change in Controlthe Effective Date, the Employee shall, consistent with the terms of Section 8(a)(ii) of the Progress Employment Agreement, be entitled to the following severance payments and in the event of benefits:
(A) a Termination other than by reason of the Executive's death, or Accrued Obligations;
(B) the Executive's termination of his employment during the Employment Period for Good Reason, Cinergy will pay the Accrued Obligations, and Cinergy will have the following obligations:
(1) Cinergy will pay to the Executive a lump sum amount, in cash, equal to three (3) 2.99 times the sum of the Annual Base Salary payable in equal cash installments, paid in accordance with Duke Energy’s regular payroll practices, over a period of 2.99 years from the Date of Termination;
(C) reimbursement for continued coverage under certain health and welfare benefit plans pursuant to the AIP Benefit. For this purposeConsolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”) until the Annual Base Salary will be at earlier of (i) 18 months after the rate in effect at the time Notice Date of Termination is given or (without giving effect ii) the Employee’s right to any reduction in Annual Base Salary, if any, prior to receive COBRA ends; and
(D) the termination). The AIP Benefit will be determined using a percentage determined treatment of all outstanding LTIP Awards held by the Chief Executive Officer, in his discretion, which will not be less than the Executive's annual target percentage for the fiscal year in which the Termination occurs and will not be greater than the maximum percentage specified in Subsection 3b. This lump sum will be paid within thirty (30) days Employee as of the Date of Termination.
(2) Cinergy will pay to the Executive the value of all deferred compensation amounts and all executive life insurance benefits whether or not they are otherwise currently vested or payable. Payment will Termination shall be made determined in accordance with the terms of the applicable plan or program.
(3) Except as provided under Clauses (A) and (B) below, Cinergy will continue, until the end of the Employment Period, medical and dental benefits to the Executive and/or the Executive's family at least equal to those that would have been provided if the Executive's employment had not been terminated (excluding benefits to which the Executive has waived his rights in writing). The benefits described in the preceding sentence will be in accordance with the medical and welfare benefit plans, practices, programs, or policies of Cinergy (the "M&W Plans") as then currently in effect and applicable generally to other Cinergy senior executives and their families.
(A) If, as of the Executive's Date of Termination, the Executive meets the eligibility requirements award agreement for Cinergy's retiree medical and welfare benefit plans, the provision of those retiree medical and welfare benefit plans to the Executive will satisfy Cinergy's obligation under this Subparagraph 5a(ii)(3).
(B) If, as of the Executive's Date of Termination, the provision to the Executive of the M&W Plan benefits described in this Subparagraph 5a(ii)(3) would either (1) violate the terms of the M&W Plans or (2) violate any of the Code's nondiscrimination requirements applicable to the M&W Plans, then Cinergy, in its sole discretion, may elect to pay the Executive, in lieu of the M&W Plan benefits described under this Subparagraph 5a(ii)(3), a lump sum cash payment equal to the total monthly premiums that would have been paid by Cinergy for the Executive under the M&W Plans from the Date of Termination through the end of the Employment Period. Nothing in this Clause will affect the Executive's right to elect COBRA continuation coverage under a M&W Plan in accordance with applicable law.
(C) If the Executive becomes employed by another employer and is eligible to receive medical or other welfare benefits under another employer-provided plan, any benefits provided to the Executive under the M&W Plans will be secondary to those provided under the other employer-provided plan during the Executive's applicable period of eligibility.
(4) Ownership of the automobile assigned to the Executive by Cinergy will be transferred to the Executive within 30 days of the Date of Termination. The effect of this transfer will be grossed up for federal and state income taxes as soon as administratively feasible after the transfer is effective.
(5) Cinergy will provide tax counseling services through an agency selected by the Executive, not to exceed Fifteen Thousand Dollars ($15,000.00) in costeach such LTIP Award.
(iii) In If the event of Termination by Cinergy Employee’s employment is terminated for death or by the Executive for Good Reason upon or during the twenty-four (24) month period after the occurrence of a Change in ControlDisability, then in lieu of any further salary payments he shall be entitled to the Executive for periods subsequent to the Date of Termination and in lieu of any other benefits payable pursuant to Paragraph 5a(ii), Cinergy will have the following obligations:
(1) Cinergy will pay to the Executive receive a lump sum severance payment, in cash, equal to the greater of:
(A) the present value of all amounts and benefits that would have been due under Paragraph 5a(ii), excluding Subparagraphs 5a(ii)(3), 5a(ii)(4), and 5a(ii)(5), or
(B) three (3) times the sum of (x) the higher payment of the Executive's Annual Base Salary in effect immediately prior to the occurrence Accrued Obligations and a prorata portion of the event or circumstance upon which the Notice of Termination is based or in effect immediately prior to the Change in Control, and (y) the higher of the amount paid to the Executive pursuant to all his annual incentive compensation or cash bonus plans or programs maintained by Cinergy in for the year preceding that in during which the Date of Termination occurs or occurs, determined based on actual performance and paid at the time that payment under the applicable annual incentive plan are made to other executive officers of Duke Energy and paid in accordance with the year preceding that in which the Change in Control occurs; andterms of such annual incentive plan.
(2iv) For a thirty-six (36) month period after If the Date of Termination, Cinergy will arrange to provide Employee’s employment is terminated by the Executive Employee other than with life, disability, accident, and health insurance benefits substantially similar to those that the Executive is receiving immediately prior to the Notice of Termination (without giving effect to any reduction in those benefits subsequent to a Change in Control that constitutes Good Reason), except for any benefits that were waived by the Executive in writing. If Cinergy arranges Employee shall be entitled to provide the Executive with life, disability, accident, and health insurance benefits, those benefits will be reduced to the extent comparable benefits are actually received by or made available to the Executive without cost during the thirty-six (36) month period following the Executive's Date of Termination. The Executive must report to Cinergy any such benefits that he actually receives. In lieu of the benefits described in the preceding sentences, Cinergy, in its sole discretion, may elect to pay to the Executive receive a lump sum cash payment equal to thirty-six (36) times of the monthly premiums that would have been paid by Cinergy to provide those benefits to Accrued Obligations and the Executive. Nothing in this Subparagraph 5a(iii)(2) will affect the Executive's right to elect COBRA continuation coverage treatment of all LTIP Awards shall be determined in accordance with applicable lawthe terms of the award agreements for such LTIP Awards.
(3v) Ownership of If the automobile assigned to the Executive by Cinergy will be transferred to the Executive within 30 days of the Date of Termination. The effect of this transfer will be grossed up for federal and state income taxes as soon as administratively feasible after the transfer is effective.
(4) Cinergy will provide tax counseling services through an agency selected by the Executive, not to exceed Fifteen Thousand Dollars ($15,000.00) in cost. For purposes of this Paragraph (iii), the Executive will be deemed to have incurred a Termination following a Change in Control if the Executive's Employee’s employment is terminated prior to a Change in Control, without Cause at the direction of a Person who has entered into an agreement with Cinergyby Duke Energy for Cause, the consummation Employee shall be entitled to receive a lump sum payment of which will constitute a Change the Accrued Obligations and the treatment of all LTIP Awards shall be determined in Control, or if accordance with the Executive terminates his employment terms of the award agreements for Good Reason prior to a Change in Control if the circumstances or event that constitutes Good Reason occurs at the direction of such a PersonLTIP Awards.
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Certain Terminations. (i) If a Termination occurs during the Employment Period, Cinergy will pay to the Executive a lump sum amount, in cash, equal to the sum of the following Accrued Obligations:
(1) the Executive's Annual Base Salary through the Date of Termination to the extent not previously paid;
(2) an amount equal to the AIP Benefit for the fiscal year that includes the Date of Termination multiplied by a fraction, the numerator of which is the number of days from the beginning of that fiscal year to and including the Date of Termination and the denominator of which is three hundred and sixty-five (365). The AIP Benefit will be determined using a percentage determined by the Chief Executive Officer, in his discretion, up to the maximum percentage specified in Subsection 3b, 3b but no less than the Target Annual Bonus.
(3) any compensation previously deferred by the Executive (together with any accrued interest or earnings) and any accrued vacation pay, in each case to the extent not previously paid. The Accrued Obligations described in this Paragraph 5a(i) will be paid within thirty (30) days after the Date of Termination. These Accrued Obligations are payable to the Executive regardless of whether a Change in Control has occurred.
(ii) Prior to the occurrence of a Change in Control, and in the event of (A) a Termination other than by reason of the Executive's death, death or (B) the Executive's termination of his employment during the Employment Period for Good Reason, Cinergy will pay the Accrued Obligations, and Cinergy will have the following obligations:
(1) Cinergy will pay to the Executive a lump sum amount, in cash, equal to three (3) times the sum of the Annual Base Salary and the AIP Benefit. For this purpose, the Annual Base Salary will be at the rate in effect at the time Notice of Termination is given (without giving effect to any reduction in Annual Base Salary, if any, prior to the termination). The AIP Benefit will be determined using a percentage determined by the Chief Executive Officer, in his discretion, which will not be less than the Executive's annual target percentage for the fiscal year in which the Termination occurs and will not be greater than the maximum percentage specified in Subsection 3b. This lump sum will be paid within thirty (30) days of the Date of Termination.
(2) If the Executive terminates employment with Cinergy prior to reaching age 50, Cinergy will pay to the Executive, within 30 days of the Date of Termination, a lump sum amount, in cash, equal to the present value, discounted at the Prime Rate, of all benefits to which the Executive would have been entitled had he remained employed by Cinergy until the end of the Employment Period, each, where applicable, at the rate of Annual Base Salary, and using the same goals and factors, in effect at the time Notice of Termination is given, under the Value Creation Plan of the LTIP and the Executive Supplemental Life Insurance Program, minus the present value, discounted at the Prime Rate, of the benefits to which he is actually entitled under these plans and programs. Cinergy will also pay to the Executive the value of all of his deferred compensation amounts, whether or not they are otherwise currently payable. If the Executive terminates employment on or after reaching age 50, Cinergy will pay to the Executive the value of all deferred compensation amounts and all executive life insurance benefits whether or not they are otherwise currently vested or payable. Payment will be made in accordance with the terms of the applicable plan or program.
(3) Except as provided under Clauses (A) and (B) below, Cinergy will continue, until the end of the Employment Period, medical and dental benefits to the Executive and/or the Executive's family at least equal to those that would have been provided if the Executive's employment had not been terminated (excluding benefits to which the Executive has waived his rights in writing). The benefits described in the preceding sentence will be in accordance with the medical and welfare benefit plans, practices, programs, or policies of Cinergy (the "M&W Plans") as then currently in effect and applicable generally to other Cinergy senior executives and their families.
(A) If, as of the Executive's Date of Termination, the Executive meets the eligibility requirements for Cinergy's retiree medical and welfare benefit plans, the provision of those retiree medical and welfare benefit plans to the Executive will satisfy Cinergy's obligation under this Subparagraph 5a(ii)(3).
(B) If, as of the Executive's Date of Termination, the provision to the Executive of the M&W Plan benefits described in this Subparagraph 5a(ii)(3) would either (1) violate the terms of the M&W Plans or (2) violate any of the Code's nondiscrimination requirements applicable to the M&W Plans, then Cinergy, in its sole discretion, may elect to pay the Executive, in lieu of the M&W Plan benefits described under this Subparagraph 5a(ii)(3), a lump sum cash payment equal to the total monthly premiums that would have been paid by Cinergy for the Executive under the M&W Plans from the Date of Termination through the end of the Employment Period. Nothing in this Clause will affect the Executive's right to elect COBRA continuation coverage under a M&W Plan in accordance with applicable law.
(C) If the Executive becomes employed by another employer and is eligible to receive medical or other welfare benefits under another employer-provided plan, any benefits provided to the Executive under the M&W Plans will be secondary to those provided under the other employer-provided plan during the Executive's applicable period of eligibility.
(4) Ownership of the automobile assigned to the Executive by Cinergy will be transferred to the Executive within 30 days of the Date of Termination. The effect of this transfer will be grossed up for federal and state income taxes as soon as administratively feasible after the transfer is effective.
(5) Cinergy will provide tax counseling services through an agency selected by the Executive, not to exceed Fifteen Thousand Dollars ($15,000.00) in cost.
(iii) In the event of Termination Termination, by Cinergy or by the Executive for Good Reason Reason, upon or during the twenty-four (24) month period after the occurrence of a Change in Control, then in lieu of any further salary payments to the Executive for periods subsequent to the Date of Termination and in lieu of any other benefits payable pursuant to Paragraph 5a(ii), Cinergy will have the following obligations:
(1) Cinergy will pay to the Executive a lump sum severance payment, in cash, equal to the greater of:
(A) the present value of all amounts and benefits that would have been due under Paragraph 5a(ii), excluding Subparagraphs 5a(ii)(3), 5a(ii)(4), and 5a(ii)(5), or
(B) three (3) times the sum of (x) the higher of the Executive's Annual Base Salary in effect immediately prior to the occurrence of the event or circumstance upon which the Notice of Termination is based or in effect immediately prior to the Change in Control, and (y) the higher of the amount paid to the Executive pursuant to all annual incentive compensation or bonus plans or programs maintained by Cinergy in the year preceding that in which the Date of Termination occurs or in the year preceding that in which the Change in Control occurs; and
(2) For a thirty-six (36) month period after the Date of Termination, Cinergy will arrange to provide the Executive with life, disability, accident, and health insurance benefits substantially similar to those that the Executive is receiving immediately prior to the Notice of Termination (without giving effect to any reduction in those benefits subsequent to a Change in Control that constitutes Good Reason), except for any benefits that were waived by the Executive in writing. If Cinergy arranges to provide the Executive with life, disability, accident, and health insurance benefits, those benefits will be reduced to the extent comparable benefits are actually received by or made available to the Executive without cost during the thirty-six (36) month period following the Executive's Date of Termination. The Executive must report to Cinergy any such benefits that he actually receives. In lieu of the benefits described in the preceding sentences, Cinergy, in its sole discretion, may elect to pay to the Executive a lump sum cash payment equal to thirty-six (36) times the monthly premiums that would have been paid by Cinergy to provide those benefits to the Executive. Nothing in this Subparagraph 5a(iii)(2) will affect the Executive's right to elect COBRA continuation coverage in accordance with applicable law.
(3) Ownership of the automobile assigned to the Executive by Cinergy will be transferred to the Executive within 30 days of the Date of Termination. The effect of this transfer will be grossed up for federal and state income taxes as soon as administratively feasible after the transfer is effective.
(4) Cinergy will provide tax counseling services through an agency selected by the Executive, not to exceed Fifteen Thousand Dollars ($15,000.00) in cost. For purposes of this Paragraph (iii), the Executive will be deemed to have incurred a Termination following a Change in Control if the Executive's employment is terminated prior to a Change in Control, without Cause at the direction of a Person who has entered into an agreement with Cinergy, the consummation of which will constitute a Change in Control, or if the Executive terminates his employment for Good Reason prior to a Change in Control if the circumstances or event that constitutes Good Reason occurs at the direction of such a Person.
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Certain Terminations. (i) If a Termination occurs during the Employment Period, Cinergy will pay to the Executive a lump sum amount, in cash, equal to the sum of the following Accrued Obligations:
(1) the Executive's Annual Base Salary through the Date of Termination to the extent not previously paid;
(2) an amount equal to the AIP Benefit for the fiscal year that includes the Date of Termination multiplied by a fraction, the numerator of which is the number of days from the beginning of that fiscal year to and including the Date of Termination and the denominator of which is three hundred and sixty-five (365). The AIP Benefit will be determined using a percentage determined by the Chief Executive Officer, in his discretion, up to the maximum percentage specified in Subsection 3b, but no less than the Target Annual Bonus.
(3) any compensation previously deferred by the Executive (together with any accrued interest or earnings) and any accrued vacation pay, in each case to the extent not previously paid. The Accrued Obligations described in this Paragraph 5a(i) will be paid within thirty (30) days after the Date of Termination. These Accrued Obligations are payable to the Executive regardless of whether a Change in Control has occurred.
(ii) Prior to the occurrence of a Change in Control, and in the event of (A) a Termination other than by reason of the Executive's death, or (B) the Executive's termination of his her employment during the Employment Period for Good Reason, Cinergy will pay the Accrued Obligations, and Cinergy will have the following obligations:
(1) Cinergy will pay to the Executive a lump sum amount, in cash, equal to three (3) times the sum of the Annual Base Salary and the AIP Benefit. For this purpose, the Annual Base Salary will be at the rate in effect at the time Notice of Termination is given (without giving effect to any reduction in Annual Base Salary, if any, prior to the termination). The AIP Benefit will be determined using a percentage determined by the Chief Executive Officer, in his discretion, which will not be less than the Executive's annual target percentage for the fiscal year in which the Termination occurs and will not be greater than the maximum percentage specified in Subsection 3b. This lump sum will be paid within thirty (30) days of the Date of Termination.
(2) Cinergy will pay to the Executive the value of all deferred compensation amounts and all executive life insurance benefits whether or not they are otherwise currently vested or payable. Payment will be made in accordance with the terms of the applicable plan or program.
(3) Except as provided under Clauses (A) and (B) below, Cinergy will continue, until the end of the Employment Period, medical and dental benefits to the Executive and/or the Executive's family at least equal to those that would have been provided if the Executive's employment had not been terminated (excluding benefits to which the Executive has waived his her rights in writing). The benefits described in the preceding sentence will be in accordance with the medical and welfare benefit plans, practices, programs, or policies of Cinergy (the "M&W Plans") as then currently in effect and applicable generally to other Cinergy senior executives and their families.
(A) If, as of the Executive's Date of Termination, the Executive meets the eligibility requirements for Cinergy's retiree medical and welfare benefit plans, the provision of those retiree medical and welfare benefit plans to the Executive will satisfy Cinergy's obligation under this Subparagraph 5a(ii)(3).
(B) If, as of the Executive's Date of Termination, the provision to the Executive of the M&W Plan benefits described in this Subparagraph 5a(ii)(3) would either (1) violate the terms of the M&W Plans or (2) violate any of the Code's nondiscrimination requirements applicable to the M&W Plans, then Cinergy, in its sole discretion, may elect to pay the Executive, in lieu of the M&W Plan benefits described under this Subparagraph 5a(ii)(3), a lump sum cash payment equal to the total monthly premiums that would have been paid by Cinergy for the Executive under the M&W Plans from the Date of Termination through the end of the Employment Period. Nothing in this Clause will affect the Executive's right to elect COBRA continuation coverage under a M&W Plan in accordance with applicable law.
(C) If the Executive becomes employed by another employer and is eligible to receive medical or other welfare benefits under another employer-provided plan, any benefits provided to the Executive under the M&W Plans will be secondary to those provided under the other employer-provided plan during the Executive's applicable period of eligibility.
(4) Ownership of the automobile assigned to the Executive by Cinergy will be transferred to the Executive within 30 days of the Date of Termination. The effect of this transfer will be grossed up for federal and state income taxes as soon as administratively feasible after the transfer is effective.
(5) Cinergy will provide tax counseling services through an agency selected by the Executive, not to exceed Fifteen Thousand Dollars ($15,000.00) in cost.
(iii) In the event of Termination by Cinergy or by the Executive for Good Reason upon or during the twenty-four (24) month period after the occurrence of a Change in Control, then in lieu of any further salary payments to the Executive for periods subsequent to the Date of Termination and in lieu of any other benefits payable pursuant to Paragraph 5a(ii), Cinergy will have the following obligations:
(1) Cinergy will pay to the Executive a lump sum severance payment, in cash, equal to the greater of:
(A) the present value of all amounts and benefits that would have been due under Paragraph 5a(ii), excluding Subparagraphs 5a(ii)(3), 5a(ii)(4), and 5a(ii)(5), or
(B) three (3) times the sum of (x) the higher of the Executive's Annual Base Salary in effect immediately prior to the occurrence of the event or circumstance upon which the Notice of Termination is based or in effect immediately prior to the Change in Control, and (y) the higher of the amount paid to the Executive pursuant to all annual incentive compensation or bonus plans or programs maintained by Cinergy in the year preceding that in which the Date of Termination occurs or in the year preceding that in which the Change in Control occurs; and
(2) For a thirty-six (36) month period after the Date of Termination, Cinergy will arrange to provide the Executive with life, disability, accident, and health insurance benefits substantially similar to those that the Executive is receiving immediately prior to the Notice of Termination (without giving effect to any reduction in those benefits subsequent to a Change in Control that constitutes Good Reason), except for any benefits that were waived by the Executive in writing. If Cinergy arranges to provide the Executive with life, disability, accident, and health insurance benefits, those benefits will be reduced to the extent comparable benefits are actually received by or made available to the Executive without cost during the thirty-six (36) month period following the Executive's Date of Termination. The Executive must report to Cinergy any such benefits that he she actually receives. In lieu of the benefits described in the preceding sentences, Cinergy, in its sole discretion, may elect to pay to the Executive a lump sum cash payment equal to thirty-six (36) times the monthly premiums that would have been paid by Cinergy to provide those benefits to the Executive. Nothing in this Subparagraph 5a(iii)(2) will affect the Executive's right to elect COBRA continuation coverage in accordance with applicable law.
(3) Ownership of the automobile assigned to the Executive by Cinergy will be transferred to the Executive within 30 days of the Date of Termination. The effect of this transfer will be grossed up for federal and state income taxes as soon as administratively feasible after the transfer is effective.
(4) Cinergy will provide tax counseling services through an agency selected by the Executive, not to exceed Fifteen Thousand Dollars ($15,000.00) in cost. For purposes of this Paragraph (iii), the Executive will be deemed to have incurred a Termination following a Change in Control if the Executive's employment is terminated prior to a Change in Control, without Cause at the direction of a Person who has entered into an agreement with Cinergy, the consummation of which will constitute a Change in Control, or if the Executive terminates his her employment for Good Reason prior to a Change in Control if the circumstances or event that constitutes Good Reason occurs at the direction of such a Person.
Appears in 1 contract
Certain Terminations. (i) If a Qualifying Termination occurs during the Employment Period, Cinergy will pay to the Executive a lump sum amount, in cash, equal to the sum of the following Accrued Obligations:
(1) the pro-rated portion of the Executive's ’s Annual Base Salary payable through the Date of Termination Termination, to the extent not previously paid;.
(2) any amount payable to the Executive under the Annual Incentive Plan in respect of the most recently completed fiscal year, to the extent not theretofore paid.
(3) an amount equal to the AIP Benefit for the fiscal year that includes the Date of Termination multiplied by a fraction, the numerator of which is the number of days from the beginning of that fiscal year to and including the Date of Termination and the denominator of which is three hundred and sixty-five (365). The AIP Benefit component of the calculation will be determined using a percentage equal to the annual bonus that would have been earned by the Executive pursuant to any annual bonus or incentive plan maintained by Cinergy in respect of the fiscal year in which occurs the Date of Termination, determined by projecting Cinergy’s performance and other applicable goals and objectives for the Chief Executive Officer, in his discretion, up entire fiscal year based on Cinergy’s performance during the period of such fiscal year occurring prior to the maximum percentage specified in Subsection 3bDate of Termination, but no less than the Target Annual Bonusand based on such other assumptions and rates as Cinergy deems reasonable.
(34) any compensation previously deferred by the Executive (together with any accrued interest or earnings) and any accrued vacation pay, in each case to the extent not previously paid. The Accrued Obligations described in this Paragraph Section 5a(i) will be paid within thirty (30) days after the Date of Termination. These Accrued Obligations are payable to the Executive regardless of whether a Change in Control has occurred.
(ii) Prior In the event of a Qualifying Termination either prior to the occurrence of a Change in Control, and or more than twenty-four (24) months following the occurrence of a Change in the event of (A) a Termination other than by reason of the Executive's death, or (B) the Executive's termination of his employment during the Employment Period for Good ReasonControl, Cinergy will pay the Accrued Obligations, and Cinergy will have the following obligations:additional obligations described in this Section 5a(ii); provided, however, that each of the benefits described below in this Section 5a(ii) shall only be provided to the Executive if, upon presentation to the Executive following a Qualifying Termination, the Executive timely executes and does not timely revoke the Waiver and Release.
(1) Cinergy will pay to the Executive a lump sum amount, in cash, equal to three (3) times the sum of the Annual Base Salary and the AIP BenefitAnnual Bonus. For this purpose, the Annual Base Salary will be at the rate in effect at the time Notice of Termination is given (without giving effect to any reduction in Annual Base Salary, if any, prior to the termination, other than across-the-board reductions). The AIP Benefit , and the Annual Bonus will be determined using a percentage determined the higher of (A) the annual bonus earned by the Chief Executive Officerpursuant to any annual bonus or incentive plan maintained by Cinergy in respect of the year ending immediately prior to the fiscal year in which occurs the Date of Termination, and (B) the annual bonus that would have been earned by the Executive pursuant to any annual bonus or incentive plan maintained by Cinergy in his discretionrespect of the fiscal year in which occurs the Date of Termination, which will calculated by projecting Cinergy’s performance and other applicable goals and objectives for the entire fiscal year based on Cinergy’s performance during the period of such fiscal year occurring prior to the Date of Termination, and based on such other assumptions and rates as Cinergy deems reasonable; provided, however that for purposes of this Section 5a(ii)(1)(B), the Annual Bonus shall not be less than the Executive's annual target percentage Target Annual Bonus, nor greater than the Maximum Annual Bonus for the fiscal year in which the Date of Termination occurs and will not be greater than the maximum percentage specified in Subsection 3boccurs. This lump sum will be paid within thirty (30) days after the expiration of the Date of Terminationrevocation period contained in the Waiver and Release.
(2) With respect to each performance share award held by the Executive pursuant to the Value Creation Plan of the LTIP on the Date of Termination (collectively, the “Performance Share Awards”), Cinergy will pay to the Executive an amount, in cash, equal to the value excess (if any) of all deferred compensation amounts and all executive life insurance benefits whether or not they are otherwise currently vested or payable. Payment will be made in accordance with (i) the terms amount to which the Executive would have been entitled under each Performance Share Award if he had remained employed by Cinergy until the end of the applicable plan or programEmployment Period, over (ii) the amount to which he is actually entitled under such Performance Share Award. With respect to each Performance Share Award, such amount shall be paid to the Executive at the same time as other amounts are paid with respect to that Performance Share Award.
(3) Except as provided under Subject to Clauses (A), (B) and (BC) below, Cinergy will continueprovide, until the end of the Employment Period, medical and dental benefits to the Executive and/or the Executive's family ’s eligible dependents at least equal to those that would have been provided if the Executive's ’s employment had not been terminated (excluding benefits to which the Executive has waived his rights in writing). The benefits described in the preceding sentence will be in accordance with the medical and welfare benefit plans, practices, programs, or policies of Cinergy (the "“M&W Plans"”) as then currently in effect and applicable generally to other Cinergy senior executives and their families.
(A) If, as of the Executive's ’s Date of Termination, the Executive meets the eligibility requirements for Cinergy's ’s retiree medical and welfare benefit plans, the provision of those retiree medical and welfare benefit plans to the Executive will satisfy Cinergy's ’s obligation under this Subparagraph Section 5a(ii)(3).
(B) If, as of the Executive's ’s Date of Termination, the provision to the Executive of the M&W Plan benefits described in this Subparagraph Section 5a(ii)(3) would either (1) violate the terms of the M&W Plans (or any related insurance policies) or (2) violate any of the Code's ’s nondiscrimination requirements applicable to the M&W Plans, then Cinergy, in its sole discretion, may elect to pay the Executive, in lieu of the M&W Plan benefits described under this Subparagraph Section 5a(ii)(3), a lump sum cash payment equal to the total monthly premiums (or in the case of a self funded plan, the cost of COBRA continuation coverage) that would have been paid by Cinergy for the Executive under the M&W Plans from the Date of Termination through the end of the Employment Period. Nothing in this Clause will affect the Executive's ’s right to elect COBRA continuation coverage under a M&W Plan in accordance with applicable law, and Cinergy will make the payment described in this Clause whether or not the Executive elects COBRA continuation coverage, and whether or not the Executive receives health coverage from another employer.
(C) If the Executive becomes employed by another employer and is eligible to receive medical or other welfare benefits under another employer-provided plan, any benefits provided to the Executive under the M&W Plans will be secondary to those provided under the other employer-provided plan during the Executive's ’s applicable period of eligibility.
(4) Ownership of the automobile assigned to Cinergy will pay the Executive by Cinergy will be transferred a lump sum amount, in cash, equal to the Executive within 30 days of the Date of Termination. The effect of this transfer will be grossed up for federal and state income taxes as soon as administratively feasible after the transfer is effective.
(5) Cinergy will provide $15,000 in order to cover tax counseling services through an agency selected by the Executive. Such payment will be transferred to the Executive within thirty (30) days of the expiration of the revocation period contained in the Waiver and Release.
(5) In lieu of any and all other rights with respect to the automobile assigned by Cinergy to the Executive (or the equivalent cash allowance), not Cinergy will provide the Executive with a lump sum payment in the amount of $60,000. Such payment will be transferred to exceed Fifteen Thousand Dollars the Executive within thirty ($15,000.0030) days of the expiration of the revocation period contained in costthe Waiver and Release.
(iii) In the event of a Qualifying Termination by Cinergy or by the Executive for Good Reason upon or during the twenty-four (24) month period after beginning upon the occurrence of a Change in Control, then Cinergy will pay the Accrued Obligations listed in lieu of any further salary payments to the Executive for periods subsequent to the Date of Termination Sections 5a(i)(1) and in lieu of any other benefits payable pursuant to Paragraph 5a(ii(2), Cinergy will pay the Accrued Obligations listed in Section 5a(i)(3) (but only if such Qualifying Termination occurs after the calendar year in which occurs such Change in Control) and Cinergy will have the following obligations:additional obligations described in this Section 5a(iii); provided, however, that each of the benefits described below in this Section 5a(iii) shall only be provided to the Executive if, upon presentation to the Executive following a Qualifying Termination, the Executive timely executes and does not timely revoke the Waiver and Release.
(1) Cinergy will pay to the Executive a lump sum severance payment, in cash, equal to the greater of:
(A) the present value of all amounts and benefits that would have been due under Paragraph 5a(ii), excluding Subparagraphs 5a(ii)(3), 5a(ii)(4), and 5a(ii)(5), or
(B) three (3) times the sum higher of (x) the higher sum of the Executive's ’s current Annual Base Salary and Target Annual Bonus and (y) the sum of the Executive’s Annual Base Salary in effect immediately prior to the occurrence Change in Control and the Change in Control Bonus. For purposes of this Agreement, the Change in Control Bonus shall mean the higher of (A) the annual bonus earned by the Executive pursuant to any annual bonus or incentive plan maintained by Cinergy in respect of the event or circumstance upon which the Notice of Termination is based or in effect year ending immediately prior to the fiscal year in which occurs the Date of Termination or, if higher, immediately prior to the fiscal year in which occurs the Change in Control, and (yB) the higher of the amount paid to annual bonus that would have been earned by the Executive pursuant to all any annual bonus or incentive compensation or bonus plans or programs plan maintained by Cinergy in respect of the year preceding that in which occurs the Date of Termination, calculated by projecting Cinergy’s performance and other applicable goals and objective for the entire fiscal year based on Cinergy’s performance during the period of such fiscal year occurring prior to the Date of Termination, and based on such other assumptions and rates as Cinergy deems reasonable, provided, however, that for purposes of this Section 5a(iii)(1)(B), such Change in Control Bonus shall not be less than the Target Annual Bonus, nor greater than the Maximum Annual Bonus. This lump sum will be paid within thirty (30) days of the expiration of the revocation period contained in the Waiver and Release. Nothing in this Section 5a(iii)(1) shall preclude the Executive from receiving the amount, if any, to which he is entitled in accordance with the terms of the Annual Incentive Plan for the fiscal year that includes the Date of Termination.
(2) Cinergy will pay to the Executive the lump sum present value of any benefits under the Executive Supplemental Life Program under the terms of the applicable plan or program as of the Date of Termination, calculated as if the Executive was fully vested as of the Date of Termination. The lump sum present value, assuming commencement at the Executive’s age as of the Date of Termination, will be determined using the interest rate applicable to lump sum payments in the Cinergy Corp. Non-Union Employees’ Pension Plan or any successor to that plan for the plan year that includes the Date of Termination. To the extent no such interest rate is provided therein, the annual interest rate applicable under Section 417(e)(3) of the Code, or any successor provision thereto, for the second full calendar month preceding the first day of the calendar year that includes the Date of Termination occurs or will be used. This lump sum will be paid within thirty (30) days of the expiration of the revocation period contained in the year preceding that in which the Change in Control occurs; andWaiver and Release.
(23) The Executive shall be fully vested in his accrued benefits as of the Date of Termination under the Executive Retirement Plans, and his aggregate accrued benefits thereunder and under Section 3b(ii) of this Agreement will be calculated, and he will be treated for all purposes, as if he was credited with three (3) additional years of age and service as of the Date of Termination, provided, however, that to the extent a calculation is made regarding the actuarial equivalent amount of any alternate form of benefit, the Executive will not be credited with three additional years of age for purposes of such calculation.
(4) For a thirty-six (36) month period after the Date of Termination, Cinergy will arrange to provide to the Executive with and/or the Executive’s eligible dependents life, disability, accident, and health insurance benefits substantially similar to those that the Executive is and/or the Executive’s dependents are receiving immediately prior to the Notice of Termination at a substantially similar cost to the Executive (without giving effect to any reduction in those benefits subsequent to a Change in Control that constitutes Good Reason), except for any benefits that were waived by the Executive in writing. If Cinergy arranges to provide the Executive and/or the Executive’s dependents with life, disability, accident, and health insurance benefits, those benefits will be reduced to the extent comparable benefits are actually received by or made available to the Executive without cost and/or the Executive’s dependents during the thirty-six (36) month period following the Executive's ’s Date of Termination. The Executive must report to Cinergy any such benefits that he or his dependents actually receivesreceives or that are made available to him or his dependents. In lieu of the benefits described in the preceding sentences, Cinergy, in its sole discretion, may elect to pay to the Executive a lump sum cash payment equal to thirty-six (36) times the monthly premiums (or in the case of a self funded plan, the cost of COBRA continuation coverage) that would have been paid by Cinergy to provide those benefits to the Executive and/or the Executive’s dependents. Nothing in this Subparagraph 5a(iii)(2Section 5a(iii)(4) will affect the Executive's ’s right to elect COBRA continuation coverage in accordance with applicable law, and Cinergy will provide the benefits or make the payment described in this Clause whether or not the Executive elects COBRA continuation coverage, and whether or not the Executive receives health coverage from another employer.
(35) Ownership In lieu of any and all other rights with respect to the automobile assigned by Cinergy to the Executive by (or the equivalent cash allowance), Cinergy will provide the Executive with a lump sum payment in the amount of $60,000. Such payment will be transferred to the Executive within 30 thirty (30) days of the Date expiration of Termination. The effect of this transfer will be grossed up for federal the revocation period contained in the Waiver and state income taxes as soon as administratively feasible after the transfer is effectiveRelease.
(46) Cinergy will provide pay the Executive a lump sum amount, in cash, equal to $15,000 in order to cover tax counseling services through an agency selected by the Executive. Such payment will be transferred to the Executive within thirty (30) days of the expiration of the revocation period contained in the Waiver and Release.
(7) Cinergy will provide annual dues and assessments of the Executive for membership in a country club selected by the Executive until the end of the Employment Period. Such payment will be transferred to the Executive within thirty (30) days of the expiration of the revocation period contained in the Waiver and Release.
(8) Cinergy will provide outplacement services suitable to the Executive’s position until the end of the Employment Period; provided, not to however, that in no event shall the cost of such outplacement services exceed Fifteen Thousand Dollars ($15,000.00) in cost15% of the Executive’s Annual Base Salary. For purposes of this Paragraph (iiiSection 5a(iii), the Executive will be deemed to have incurred a Qualifying Termination following upon a Change in Control if the Executive's ’s employment is terminated prior to a Change in Control, without Cause at the direction of a Person who has entered into an agreement with Cinergy, the consummation of which will constitute a Change in Control, or if the Executive terminates his employment for Good Reason prior to a Change in Control if the circumstances or event that constitutes Good Reason occurs at the direction of such a Person.
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Certain Terminations. (i) If a Termination occurs during the Employment Period, Cinergy will pay to the Executive a lump sum amount, in cash, equal to the sum of the following Accrued Obligations:
(1) the Executive's Annual Base Salary through the Date of Termination to the extent not previously paid;
(2) an amount equal to the AIP Benefit for the fiscal year that includes the Date of Termination multiplied by a fraction, the numerator of which is the number of days from the beginning of that fiscal year to and including the Date of Termination and the denominator of which is three hundred and sixty-five (365). The AIP Benefit component of the calculation will be determined using a percentage determined by the Chief Executive Officer, in his discretion, up to the maximum percentage specified in Subsection 3b, but no less than the Target Annual Bonus.; and
(3) any compensation previously deferred by the Executive vested Deferred Compensation (together with any accrued interest or earnings) and any accrued vacation pay, in each case to the extent not previously paid. The Accrued Obligations described in this Paragraph 5a(i) will be paid within thirty (30) days after the Date of Termination. These Accrued Obligations are payable to the Executive regardless of whether a Change in Control has occurred.
(ii) Prior to In the event of a Termination prior to, or greater than twenty-four (24) months subsequent to, the occurrence of a Change in Control, and in the event of (A) a Termination other than by reason of the Executive's death, or (B) the Executive's termination of his employment during the Employment Period for Good Reason, Cinergy will pay the Accrued Obligations, and Cinergy will have the following obligations:
(1) Cinergy will pay to the Executive a lump sum amount, in cash, equal to three two (32) times the sum of the Annual Base Salary and the AIP BenefitTarget Annual Bonus. For this purpose, the Annual Base Salary will be at the rate in effect at the time Notice of Termination is given (without giving effect to any reduction in Annual Base Salary, if any, prior to the termination). The AIP Benefit will be determined using a percentage determined by the Chief Executive Officer, in his discretion, which will not be less than the Executive's annual target percentage for the fiscal year in which the Termination occurs and will not be greater than the maximum percentage specified in Subsection 3b. This lump sum will be paid within thirty (30) days of the Date of Termination.
(2) Cinergy will pay to the Executive the value of all deferred compensation (A) any Deferred Compensation, beyond that included in the Accrued Obligations and (B) any benefits under the Executive Supplemental Life Program, to the extent that these amounts are vested and all executive life insurance benefits whether or not they are otherwise currently vested or payable. Payment will be made in accordance with payable under the terms of the applicable plan or programprogram as of the Date of Termination.
(3) Except as provided under Clauses (A) and (B) below, Cinergy will continue, until the end of the Employment Period, medical and dental benefits to the Executive and/or the Executive's family at least equal to those that would have been provided if the Executive's employment had not been terminated (excluding benefits to which the Executive has waived his rights in writing). The benefits described in the preceding sentence will be in accordance with the medical and welfare benefit plans, practices, programs, or policies of Cinergy (the "M&W Plans") as then currently in effect and applicable generally to other Cinergy senior executives and their families.
(A) If, as of the Executive's Date of Termination, the Executive meets the eligibility requirements for Cinergy's retiree medical and welfare benefit plans, the provision of those retiree medical and welfare benefit plans to the Executive will satisfy Cinergy's obligation under this Subparagraph 5a(ii)(3).
(B) If, as of the Executive's Date of Termination, the provision to the Executive of the M&W Plan benefits described in this Subparagraph 5a(ii)(3) would either (1) violate the terms of the M&W Plans or (2) violate any of the Code's nondiscrimination requirements applicable to the M&W Plans, then Cinergy, in its sole discretion, may elect to pay the Executive, in lieu of the M&W Plan benefits described under this Subparagraph 5a(ii)(3), a lump sum cash payment equal to the total monthly premiums that would have been paid by Cinergy for the Executive under the M&W Plans from the Date of Termination through the end of the Employment Period. Nothing in this Clause will affect the Executive's right to elect COBRA continuation coverage under a M&W Plan in accordance with applicable law.
(C) If the Executive becomes employed by another employer and is eligible to receive medical or other welfare benefits under another employer-provided plan, any benefits provided to the Executive under the M&W Plans will be secondary to those provided under the other employer-provided plan during the Executive's applicable period of eligibility.
(4) Ownership of the automobile assigned to the Executive by Cinergy will be transferred to the Executive within 30 days of the Date of Termination. The effect of this transfer will be grossed up for federal and state income taxes as soon as administratively feasible after the transfer is effective.
(5) Cinergy will provide tax counseling services through an agency selected by the Executive, not to exceed Fifteen Thousand Dollars ($15,000.00) in cost.
(iii) In the event of Termination by Cinergy or by the Executive for Good Reason upon or during the twenty-four (24) month period after the occurrence of a Change in Control, then in lieu of any further salary payments to the Executive for periods subsequent to the Date of Termination and in lieu of any other benefits payable pursuant to Paragraph 5a(ii), Cinergy will have the following obligations:
(1) Cinergy will pay to the Executive a lump sum severance payment, in cash, equal to the greater of:
(A) the present value of all amounts and benefits that would have been due under Paragraph 5a(ii), excluding Subparagraphs 5a(ii)(3), 5a(ii)(4), and 5a(ii)(5), or
(B) three (3) times the sum higher of (x) the higher sum of the Executive's current Annual Base Salary and AIP Benefit, or (y) the sum of the Executive Annual Base Salary in effect immediately prior to the occurrence of the event or circumstance upon which the Notice of Termination is based or in effect immediately prior to the Change in Control, Control and (y) the higher of the amount paid to the Executive pursuant to all annual incentive compensation or bonus plans or programs maintained by Cinergy in his AIP Benefit for the year preceding that in which the Date of Termination occurs or in the year preceding that in which the Change in Control occurs; and
(2) Cinergy will pay to the Executive the value of (A) any Deferred Compensation, beyond that included in the Accrued Obligations and (B) any benefits under the Executive Supplemental Life Program, to the extent that these amounts are vested and payable under the terms of the applicable plan or program as of the Date of Termination.
(3) For a thirty-six (36) month period after the Date of Termination, Cinergy will arrange to provide the Executive with life, disability, accident, and health insurance benefits substantially similar to those that the Executive is receiving immediately prior to the Notice of Termination (without giving effect to any reduction in those benefits subsequent to a Change in Control that constitutes Good Reason), except for any benefits that were waived by the Executive in writing. If Cinergy arranges to provide the Executive with life, disability, accident, and health insurance benefits, those benefits will be reduced to the extent comparable benefits are actually received by or made available to the Executive without cost during the thirty-six (36) month period following the Executive's Date of Termination. The Executive must report to Cinergy any such benefits that he actually receives. In lieu of the benefits described in the preceding sentences, Cinergy, in its sole discretion, may elect to pay to the Executive a lump sum cash payment equal to thirty-six (36) times the monthly premiums that would have been paid by Cinergy to provide those benefits to the Executive. Nothing in this Subparagraph 5a(iii)(25a(iii)(3) will affect the Executive's right to elect COBRA continuation coverage in accordance with applicable law.
(34) Ownership of the automobile assigned to the Executive by Cinergy will be transferred to the Executive within 30 days of the Date of Termination. The effect of this transfer will be grossed up for federal and state income taxes as soon as administratively feasible after the transfer is effective.
(45) Cinergy will provide tax counseling services through an agency selected by the Executive, not to exceed Fifteen Thousand Dollars ($15,000.00) in cost. For purposes of this Paragraph (iii), the Executive will be deemed to have incurred a Termination following a Change in Control if the Executive's employment is terminated prior to a Change in Control, without Cause at the direction of a Person who has entered into an agreement with Cinergy, the consummation of which will constitute a Change in Control, or if the Executive terminates his employment for Good Reason prior to a Change in Control if the circumstances or event that constitutes Good Reason occurs at the direction of such a Person.
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Certain Terminations. (i) If a Qualifying Termination occurs during the Employment Period, Cinergy will pay to the Executive a lump sum amount, in cash, equal to the sum of the following Accrued Obligations:
(1) the pro-rated portion of the Executive's ’s Annual Base Salary payable through the Date of Termination Termination, to the extent not previously paid;.
(2) any amount payable to the Executive under the Annual Incentive Plan in respect of the most recently completed fiscal year, to the extent not theretofore paid.
(3) an amount equal to the AIP Benefit for the fiscal year that includes the Date of Termination multiplied by a fraction, the numerator of which is the number of days from the beginning of that fiscal year to and including the Date of Termination and the denominator of which is three hundred and sixty-five (365). The AIP Benefit component of the calculation will be determined using a percentage equal to the annual bonus that would have been earned by the Executive pursuant to any annual bonus or incentive plan maintained by Cinergy in respect of the fiscal year in which occurs the Date of Termination, determined by projecting Cinergy’s performance and other applicable goals and objectives for the Chief Executive Officer, in his discretion, up entire fiscal year based on Cinergy’s performance during the period of such fiscal year occurring prior to the maximum percentage specified in Subsection 3bDate of Termination, but no less than the Target Annual Bonusand based on such other assumptions and rates as Cinergy deems reasonable.
(34) any compensation previously deferred by the Executive (together with any accrued interest or earnings) and any accrued vacation pay, in each case to the extent not previously paid. The Accrued Obligations described in this Paragraph Section 5a(i) will be paid within thirty (30) days after the Date of Termination. These Accrued Obligations are payable to the Executive regardless of whether a Change in Control has occurred.
(ii) Prior In the event of a Qualifying Termination either prior to the occurrence of a Change in Control, and or more than twenty-four (24) months following the occurrence of a Change in the event of (A) a Termination other than by reason of the Executive's death, or (B) the Executive's termination of his employment during the Employment Period for Good ReasonControl, Cinergy will pay the Accrued Obligations, and Cinergy will have the following obligations:additional obligations described in this Section 5a(ii); provided, however, that each of the benefits described below in this Section 5a(ii) shall only be provided to the Executive if, upon presentation to the Executive following a Qualifying Termination, the Executive timely executes and does not timely revoke the Waiver and Release.
(1) Cinergy will pay to the Executive a lump sum amount, in cash, equal to three (3) times the sum of the Annual Base Salary and the AIP Benefit. For this purpose, the Annual Base Salary will be at the rate in effect at the time Notice of Termination is given (without giving effect to any reduction in Annual Base Salary, if any, prior to the termination). The AIP Benefit will be determined using a percentage determined by the Chief Executive Officer, in his discretion, which will not be less than the Executive's annual target percentage for the fiscal year in which the Termination occurs and will not be greater than the maximum percentage specified in Subsection 3b. This lump sum will be paid within thirty (30) days of the Date of Termination.
(2) Cinergy will pay to the Executive the value of all deferred compensation amounts and all executive life insurance benefits whether or not they are otherwise currently vested or payable. Payment will be made in accordance with the terms of the applicable plan or program.
(3) Except as provided under Clauses (A) and (B) below, Cinergy will continue, until the end of the Employment Period, medical and dental benefits to the Executive and/or the Executive's family at least equal to those that would have been provided if the Executive's employment had not been terminated (excluding benefits to which the Executive has waived his rights in writing). The benefits described in the preceding sentence will be in accordance with the medical and welfare benefit plans, practices, programs, or policies of Cinergy (the "M&W Plans") as then currently in effect and applicable generally to other Cinergy senior executives and their families.
(A) If, as of the Executive's Date of Termination, the Executive meets the eligibility requirements for Cinergy's retiree medical and welfare benefit plans, the provision of those retiree medical and welfare benefit plans to the Executive will satisfy Cinergy's obligation under this Subparagraph 5a(ii)(3).
(B) If, as of the Executive's Date of Termination, the provision to the Executive of the M&W Plan benefits described in this Subparagraph 5a(ii)(3) would either (1) violate the terms of the M&W Plans or (2) violate any of the Code's nondiscrimination requirements applicable to the M&W Plans, then Cinergy, in its sole discretion, may elect to pay the Executive, in lieu of the M&W Plan benefits described under this Subparagraph 5a(ii)(3), a lump sum cash payment equal to the total monthly premiums that would have been paid by Cinergy for the Executive under the M&W Plans from the Date of Termination through the end of the Employment Period. Nothing in this Clause will affect the Executive's right to elect COBRA continuation coverage under a M&W Plan in accordance with applicable law.
(C) If the Executive becomes employed by another employer and is eligible to receive medical or other welfare benefits under another employer-provided plan, any benefits provided to the Executive under the M&W Plans will be secondary to those provided under the other employer-provided plan during the Executive's applicable period of eligibility.
(4) Ownership of the automobile assigned to the Executive by Cinergy will be transferred to the Executive within 30 days of the Date of Termination. The effect of this transfer will be grossed up for federal and state income taxes as soon as administratively feasible after the transfer is effective.
(5) Cinergy will provide tax counseling services through an agency selected by the Executive, not to exceed Fifteen Thousand Dollars ($15,000.00) in cost.
(iii) In the event of Termination by Cinergy or by the Executive for Good Reason upon or during the twenty-four (24) month period after the occurrence of a Change in Control, then in lieu of any further salary payments to the Executive for periods subsequent to the Date of Termination and in lieu of any other benefits payable pursuant to Paragraph 5a(ii), Cinergy will have the following obligations:
(1) Cinergy will pay to the Executive a lump sum severance payment, in cash, equal to the greater of:
(A) the present value of all amounts and benefits that would have been due under Paragraph 5a(ii), excluding Subparagraphs 5a(ii)(3), 5a(ii)(4), and 5a(ii)(5), or
(B) three (3) times the sum of (x) the higher of the Executive's Annual Base Salary in effect immediately prior to the occurrence of the event or circumstance upon which the Notice of Termination is based or in effect immediately prior to the Change in Control, and (y) the higher of the amount paid to the Executive pursuant to all annual incentive compensation or bonus plans or programs maintained by Cinergy in the year preceding that in which the Date of Termination occurs or in the year preceding that in which the Change in Control occurs; and
(2) For a thirty-six (36) month period after the Date of Termination, Cinergy will arrange to provide the Executive with life, disability, accident, and health insurance benefits substantially similar to those that the Executive is receiving immediately prior to the Notice of Termination (without giving effect to any reduction in those benefits subsequent to a Change in Control that constitutes Good Reason), except for any benefits that were waived by the Executive in writing. If Cinergy arranges to provide the Executive with life, disability, accident, and health insurance benefits, those benefits will be reduced to the extent comparable benefits are actually received by or made available to the Executive without cost during the thirty-six (36) month period following the Executive's Date of Termination. The Executive must report to Cinergy any such benefits that he actually receives. In lieu of the benefits described in the preceding sentences, Cinergy, in its sole discretion, may elect to pay to the Executive a lump sum cash payment equal to thirty-six (36) times the monthly premiums that would have been paid by Cinergy to provide those benefits to the Executive. Nothing in this Subparagraph 5a(iii)(2) will affect the Executive's right to elect COBRA continuation coverage in accordance with applicable law.
(3) Ownership of the automobile assigned to the Executive by Cinergy will be transferred to the Executive within 30 days of the Date of Termination. The effect of this transfer will be grossed up for federal and state income taxes as soon as administratively feasible after the transfer is effective.
(4) Cinergy will provide tax counseling services through an agency selected by the Executive, not to exceed Fifteen Thousand Dollars ($15,000.00) in cost. For purposes of this Paragraph (iii), the Executive will be deemed to have incurred a Termination following a Change in Control if the Executive's employment is terminated prior to a Change in Control, without Cause at the direction of a Person who has entered into an agreement with Cinergy, the consummation of which will constitute a Change in Control, or if the Executive terminates his employment for Good Reason prior to a Change in Control if the circumstances or event that constitutes Good Reason occurs at the direction of such a Person.the
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Samples: Employment Agreement (Cincinnati Gas & Electric Co)
