EXHIBIT 10(iv)
EMPLOYMENT AGREEMENT
BETWEEN
CP&L SERVICE COMPANY, LLC
AND
XXXXXX XXXXXXX
AUGUST 1, 2000
EMPLOYMENT AGREEMENT
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EMPLOYMENT AGREEMENT ("Agreement"), dated as of the ____________ day of
August, 2000, between CP&L Service Company, LLC ("CP&L"), a North Carolina
corporation headquartered in Raleigh, North Carolina, and a subsidiary of CP&L
Energy, its successors or assigns and Xxxxxx XxXxxxx ("XxXxxxx"). CP&L Energy
and CP&L Service Company will be referred to herein as "CP&L" or the "Company".
Recitals
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1. The Company and XxXxxxx wish to enter into an employment
relationship whereby XxXxxxx will be employed initially as President and Chief
Executive Officer-CP&L Service Company LLC.
2. XxXxxxx will be employed as an "at will" employee of CP&L. The
parties wish to enter into this Agreement to set forth certain terms related to
that relationship.
Provisions
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NOW, THEREFORE, in consideration of the mutual covenants and promises
contained herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged and accepted, the parties hereto
hereby agree as follows:
1. TERM OF THE AGREEMENT:
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(a) The Agreement becomes effective on August 1, 2000, and
shall remain in effect for a three-year period;
(b) Each year, the Agreement will be extended such that
prospective term will always be three years forward ("Evergrow provisions") on
the anniversary date of the effective date.
(c) Company may elect to not extend Agreement and must notify
XxXxxxx at least 60 days prior to the annual anniversary date of the Agreement's
effective date. In each event, the Agreement will be effective for the remainder
of its term.
(d) The Agreement cannot extend beyond XxXxxxx'x normal
retirement date unless XxXxxxx is requested to serve in his full-time position
for a defined period as set forth by the Board of Directors.
2. RESPONSIBILITIES; OTHER ACTIVITIES.
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XxXxxxx shall initially occupy the position of President and
Chief Executive Officer-CP&L Service Company LLC and shall undertake the general
responsibilities and duties of such position as directed by CP&L. During the
Employment Term, XxXxxxx shall perform faithfully the duties of XxXxxxx'x
position, devote all of XxXxxxx'x working time and energies to the business and
affairs of CP&L and shall use XxXxxxx'x best efforts, skills and abilities to
promote CP&L. CP&L reserves the right to reassign XxXxxxx to other positions.
3. SALARY.
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As compensation for the services to be performed hereunder:
XxXxxxx will be paid a salary at the annual rate of Three Hundred Fifty Thousand
Dollars ($350,000.00) (less applicable withholdings) beginning on August 1,
2000. Annual salary for each subsequent year of the Employment Term shall be
subject to adjustment by CP&L during the normal annual salary review process for
similarly situated executives as determined by CP&L in its discretion. Annual
Salary shall be deemed earned proportionally as XxXxxxx performs services over
the course of the Salary Year. Payments of annual Salary shall be made, except
as otherwise provided herein, in accordance with CP&L's standard payroll
policies and procedures.
4. BENEFITS
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During the Employment Term, XxXxxxx shall be entitled to
participate in all Company sponsored benefits programs as CP&L may have in
effect upon terms and in accordance with policies and procedures substantially
equivalent to those then in effect and applicable generally to employees of
CP&L. Provided, however, that nothing contained in this Agreement shall require
CP&L to continue to offer such benefits or programs or to limit CP&L's absolute
right to modify or eliminate these benefits.
(a). Management Incentive Compensation Plan. XxXxxxx will be
eligible to participate in the Management Incentive Compensation Plan (MICP).
Pursuant to the terms of MICP, XxXxxxx'x target compensation under such plan
will be 40% of base salary earnings. Effective January 1, 2001, XxXxxxx'x target
compensation under such plan will be 45% of base salary earnings contingent upon
the closing of the Florida Progress Corporation ("FPC") acquisition.
(b). Long Term Incentives. XxXxxxx will be eligible to
participate in the Performance Share Sub-Plan under the 1997 Equity Incentive
Plan in accordance with the terms of the plan. Pursuant to the terms of the
plan, XxXxxxx'x target compensation under such plan will be 50% of XxXxxxx'x
base salary at the time of the award. The annual target will increase to 100%
effective January 1, 2001, contingent upon the closing of the FPC acquisition.
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(c). Restricted Share Grant. XxXxxxx will be eligible to
participate in the Restricted Share Grant Plan under the 1997 Equity Incentive
Plan in accordance with the terms of the plan. Additionally, XxXxxxx has
previously received other grants of CP&L restricted common stock pursuant to
Restricted Stock Agreement(s). Restrictions are based on continued employment.
(d). Management Deferred Compensation Plan. XxXxxxx will be
eligible for participation in CP&L's Management Deferred Compensation Plan
(MDCP), subject to its terms. Additionally, XxXxxxx has a vested benefit under
the suspended CP&L Deferred Compensation for Key Management Employees and a
retention agreement bonus under the CP&L Deferred Compensation for Key
Management Employees based on a May 20, 1997 Employment Agreement. This latter
bonus vests based on continued employment beyond age 60.
(e). Supplemental Retirement Plan. Pursuant to its terms,
XxXxxxx will be eligible for participation in CP&L Supplemental Retirement Plan
(SRP), subject to its terms.
(f). Restoration Retirement Plan. XxXxxxx will be eligible for
participation in CP&L's Restoration Retirement Plan, subject to its terms. If
XxXxxxx becomes eligible for benefits under CP&L's Supplemental Senior Executive
Retirement Plan, XxXxxxx forfeits all benefits under the Restoration Retirement
Plan.
(g). Supplemental Senior Executive Retirement Plan. XxXxxxx
shall be eligible for participation in CP&L's Supplemental Senior Executive
Retirement Plan (SERP), subject to its terms. In connection with XxXxxxx'x
participation in SERP, XxXxxxx, upon hire, was awarded 10 years of service
toward the benefits and vesting requirements of SERP. Three (3) years of deemed
service were years deemed to have been service on the Senior Management Council
(SMC) pursuant to a May 20, 1997 Employment Agreement. These credits will not
apply to the benefits and vesting requirements of any other plan or benefit plan
at CP&L.
(h). Executive Permanent Life Insurance Plan. XxXxxxx shall be
eligible to participate in CP&L's Executive Permanent Life Insurance Plan,
subject to its terms.
(i). Executive AD&D Life Insurance. XxXxxxx shall be eligible
to participate in CP&L's Executive AD&D Life Insurance Program, subject to its
terms.
(j). Stock Purchase-Savings Plan. XxXxxxx shall be eligible to
participate in CP&L's Stock Purchase-Savings Plan, subject to its terms.
(k). Financial Planning. Consistent with CP&L's practice with
respect to other senior executives, XxXxxxx will be reimbursed for financial
planning and tax preparation.
(l). Vacation. XxXxxxx shall be entitled to four (4) weeks of
paid vacation days.
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(m). Holiday. XxXxxxx will be eligible for 11 paid holidays in
each calendar year as provided in the CP&L Handbook.
(n). Automobile Allowance. XxXxxxx will be eligible to receive
an automobile allowance of One Thousand Three Hundred Fifty Dollars ($1350) per
month (less withholdings) subject to the terms of CP&L's policies. XxXxxxx will
also be eligible for a cellular phone and reserved parking at CP&L's expense.
(o). Annual Physical. CP&L will pay for an annual physical
examination by a physician of XxXxxxx'x choice.
(p). Health Club Membership. CP&L shall pay for the initiation
fee and monthly dues to a health club for XxXxxxx.
(q). Capital City Club. CP&L will pay an initiation fee and
monthly dues for a membership at the Capital City Club for XxXxxxx.
(r). Air Travel.
(i). CP&L will provide airline club membership in
accordance with CP&L's policy.
(ii). CP&L will reimburse XxXxxxx'x spouse's travel
expenses when she accompanies XxXxxxx to business meetings where spousal
attendance is customary.
(iii). CP&L will provide chartered aircraft for XxXxxxx'x
business related travel as needed.
(iv). CP&L will allow XxXxxxx to travel first class at
his discretion for business related travel.
(s). Country Club Membership. At XxXxxxx'x option, if joined,
CP&L will pay an initiation fee and monthly dues for a membership for XxXxxxx at
a country club approved by CP&L. Business related expenses will be reimbursed
consistent with CP&L's expense account guidelines.
(t). Personal Computer. CP&L will provide a personal computer
to XxXxxxx to be used at his personal residence.
(u). Home Security. CP&L will install a home security system
at XxXxxxx'x personal residence.
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(v). Other Benefits. XxXxxxx shall be eligible for
participation in other CP&L benefit plans, subject to the terms of the
respective plans, as described in more detail in the Employee Handbook or
Summary Plan Descriptions. In addition, upon retirement from CP&L, as defined by
the relevant CP&L retirement plan, XxXxxxx will be entitled to the same medical
and dental coverage provided to other future retirees, provided that to the
extent any such benefit may not be provided to XxXxxxx due to statutory or
regulatory limitation, CP&L will obtain substantially equivalent coverage on an
insured basis.
5. TERMINATION OF EMPLOYMENT.
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(a). Termination Without Cause. During the terms of this
Agreement, if XxXxxxx'x employment is terminated without cause, then XxXxxxx
will be provided with his base salary at XxXxxxx'x current rate for the
remainder of the term of this Agreement. Additionally, CP&L will reimburse
XxXxxxx for his COBRA premium for up to eighteen (18) months after the
termination of XxXxxxx'x employment as long as XxXxxxx is not eligible for
coverage under the same type of benefit plan covered by COBRA. Receipt of these
benefits is subject to the requirements of paragraph 5(g),(h) and (i) of this
Agreement. In addition, XxXxxxx will be eligible to retain all benefits under
existing benefit programs to the extent vested within the terms of those
programs.
(b) Termination for Cause. During the term of this Agreement,
CP&L may elect at any time to terminate XxXxxxx'x employment immediately
hereunder and remove XxXxxxx from employment for cause. For purposes of this
paragraph 5, cause for the termination of employment shall be defined as: (i)
any act of XxXxxxx'x including, but not limited to, misconduct, negligence,
unlawfulness, dishonesty or inattention to the business, which is detrimental to
CP&L's interests; or (ii). XxXxxxx'x unsatisfactory job performance or failure
to comply with CP&L's direction, policies, rules or regulations. If XxXxxxx is
terminated for Cause as defined, then he shall be eligible to retain all
benefits under existing benefit programs which he has vested pursuant to those
plans, but he shall not be entitled to any form of salary continuance or any
form of severance benefits. Upon such termination, XxXxxxx shall be entitled to
any earned but unpaid salary accrued to the date of termination. Any continued
rights or benefits XxXxxxx'x legal representatives may have under employee
benefit plans and programs of CP&L upon XxXxxxx'x termination for cause shall be
determined in accordance with the terms or provisions of the plan or program.
(c). Constructive Termination.
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(i) Within the term of this Agreement, if XxXxxxx'x
employment is constructively terminated, then XxXxxxx will be provided with his
base salary at the current rate for the remainder of the term of this Agreement.
Additionally, CP&L will reimburse XxXxxxx for his COBRA premiums for up to
eighteen (18) months after the termination of XxXxxxx'x employment as long as
XxXxxxx is not eligible for coverage under the same types of benefits plans
covered by COBRA. Receipt of these benefits is subject to the requirements of
paragraph
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5(g), (h) and (i) of this Agreement. In addition, XxXxxxx will be eligible to
retain all benefits under existing benefit programs to the extent vested within
the terms of those programs.
(ii) For the purposes of paragraph 5 of this
Agreement, a constructive termination will be deemed to occur if: aa) there is a
change in the form of ownership of CP&L (e.g., Service Company is acquired,
enters into a business combination with another company or otherwise changes
form of ownership) and bb) XxXxxxx is offered a new position with a material
change in authority, duties, wages or benefits, or XxXxxxx is asked to relocate
more than 50 miles. If XxXxxxx'x employment is constructively terminated under
this paragraph, XxXxxxx is entitled to the greater of either the benefits
contained in this paragraph or the benefits he is entitled to, if any, under the
CP&L Management Change-in-Control Plan, according to the terms of the Plan.
Changes to the corporation structure of CP&L not related to an acquisition of
CP&L shall not constitute grounds for constructive termination.
(d). Voluntary Termination - If XxXxxxx terminates his
employment voluntarily for any reason at any time, then he shall be eligible to
retain all benefits under existing benefit plans which have vested pursuant to
the terms of those plans, but he shall not be entitled to any form of salary
continuance or any form of severance benefit.
(e). Termination Due to Death. In the event of the death of
XxXxxxx during the Employment Term, XxXxxxx'x employment hereunder shall
terminate and CP&L shall have no further obligation to XxXxxxx under this
Agreement except as specifically provided in this Agreement. XxXxxxx'x estate
shall be entitled to receive all earned but unpaid Salary accrued to the date of
termination and any Bonus for a prior fiscal year that has been earned but not
paid. The Bonus, if any, for the current fiscal year shall be calculated on a
pro rata basis for the portion of the fiscal year in which death occurred and
shall be paid at the regularly scheduled time for the payment of the Bonus. Any
rights and benefits XxXxxxx, or XxXxxxx'x estate or other legal representatives,
may have under employee benefit plans and programs of CP&L upon XxXxxxx'x death
during the Employment Term, if any, shall be determined in accordance with the
terms and provisions of such plans and programs.
(f). Termination Due to Medical Condition.
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(i). CP&L may terminate XxXxxxx'x employment hereunder,
subject to the Americans With Disabilities Act or other applicable law, due to
medical condition if (i) for a period of 180 consecutive days during the
Employment Term, XxXxxxx is totally and permanently disabled as determined in
accordance with the Company's long-term disability plan, if any, as in effect
during such time or (ii) at any time during which no such plan is in effect,
XxXxxxx is substantially unable to perform XxXxxxx'x duties hereunder because of
a medical condition for a period of 180 consecutive days during the Employment
Term. Provided, however, that if XxXxxxx applies for and is deemed eligible for
benefits under CP&L's Long-Term Disability Plan (LTD Benefits), XxXxxxx shall
receive such benefits and his employment will not be terminated as long as he is
receiving LTD Benefits.
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(ii). Upon the termination of XxXxxxx'x employment due to
medical condition or placement of XxXxxxx on Long Term Disability (LTD), CP&L
shall have no further obligation to XxXxxxx under this Agreement except as
specifically provided in this Agreement. Upon such termination or placement on
LTD, XxXxxxx shall be entitled to all earned but unpaid Salary accrued to the
date of termination or placement on LTD and any Bonus for a prior fiscal year
that has been earned but not paid. The Bonus, if any, for the current fiscal
year shall be calculated on a pro rata basis for the portion of the fiscal year
XxXxxxx was employed or placed on LTD by CP&L and shall be paid at the regularly
scheduled time for the payment of the Bonus. Any continued rights and benefits
XxXxxxx, or XxXxxxx'x legal representatives, may have under employee benefit
plans and programs of CP&L upon XxXxxxx'x termination or placement on LTD due to
medical condition, if any, shall be determined in accordance with the terms and
provisions of such plans and programs.
(g). Release of Claims - In order to receive continuation of
salary under this paragraph 5(a) and 5(c), XxXxxxx agrees to execute a written
release of all claims against CP&L, and its employees, officers, directors,
subsidiaries and affiliates, on a form acceptable to CP&L.
(h) Covenant Not to Compete. If CP&L terminates XxXxxxx'x
employment without Cause under paragraph 5(a) or Constructively terminates
XxXxxxx'x employment under paragraph 5(c) of this Agreement, XxXxxxx, for one
year after the Termination Date, shall not compete directly or indirectly with
the Company, or its affiliates within fifty (50) miles of any geographic area in
which the Company or its affiliates has a material business interests with which
XxXxxxx is involved at the time of the termination of XxXxxxx'x employment.
(i) Non Interference. If CP&L terminates XxXxxxx'x employment
without Cause under paragraph 5(a) or Constructively terminates XxXxxxx'x
employment under paragraph 5(c) of this Agreement, XxXxxxx, for one year after
the Termination Date, shall not whether on his own account or on the account of
another individual, partnership, firm, corporation, or other business
organization (other than the Company and its affiliates), directly or
indirectly, intentionally solicit, endeavor to entice away from the Company or
any of its affiliates, or otherwise interfere with the relationship of the
Company or its affiliates with, any person who is employed by or otherwise
engaged to perform services for the Company or its affiliates including but not
limited to, any independent representatives or organizations, or any person or
entity that is a customer of the Company or its affiliates.
6. ASSIGNABILITY.
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No rights or obligations of XxXxxxx under this Agreement may
be assigned or transferred by XxXxxxx, except that (a) XxXxxxx'x rights to
compensation and benefits hereunder may be transferred by will or laws of
intestacy to the extent specified herein and
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(b) XxXxxxx'x rights under employee benefit plans or programs described in
Section 4 may be assigned or transferred in accordance with the terms of such
plans or programs, or regular practices thereunder. The Company may assign or
transfer its rights and obligations under this Agreement.
7. CONFIDENTIALITY. XxXxxxx will not disclose the terms of this
Agreement except (i) to financial and legal advisors under an obligation to
maintain confidentiality, or (ii) as required by a valid court order or subpoena
(and in such event will use XxXxxxx'x best efforts to obtain a protective order
requiring that all disclosure be kept under court seal) and will notify CP&L
promptly upon receipt of such order or subpoena.
8. MISCELLANEOUS.
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(a) Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of North Carolina without
reference to laws governing conflicts of law.
(b) Entire Agreement. This Agreement contains all of the
understandings and representations between the parties hereto pertaining to the
subject matter hereof and supersedes all undertakings and agreements, whether
oral or in writing, if any, previously entered into by them with respect
thereto.
(c) Amendment or Modification; Waiver. No provision in this
Agreement may be amended or waived unless such amendment or waiver is agreed to
in writing, signed by XxXxxxx and by an officer of CP&L thereunto duly
authorized to do so. Except as otherwise specifically provided in the Agreement,
no waiver by a party hereto of any breach by the other party hereto of any
condition or provision of the Agreement to be performed by such other party
shall be deemed a wavier of a similar or dissimilar provision or condition at
the same or any prior or subsequent time.
(d) Notice. Any notice (with the exception of notice of
termination by CP&L, which may be given by any means and need not be in writing
except that if termination is for Cause, oral notice must be followed by written
notice required under Section 5(c) hereof) or other document or communication
required or permitted to be given or delivered hereunder shall be in writing and
shall be deemed to have been duly given or delivered if (i) mailed by United
States mail, certified, return receipt requested, with proper postage prepaid,
or (ii) otherwise delivered by hand or by overnight delivery, against written
receipt, by a common carrier or commercial courier or delivery service, to the
party to whom it is to be given at the address of such party as set forth below
(or to such other address as a party shall have designated by notice to the
other parties given pursuant hereto):
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If to XxXxxxx:
Xxxxxx X. XxXxxxx
CP&L Service Company LLC
000 Xxxxxxxxxxxx Xxxxxx Xxxx
Xxxxxxx, Xxxxx Xxxxxxxx 00000
If to Service Company:
CP&L Service Company LLC
000 Xxxxxxxxxxxx Xxxxxx Xxxx
Xxxxxxx, Xxxxx Xxxxxxxx 00000
Attn.: Vice President of Human Resources
Any such notice, request, demand, advice, schedule, report, certificate,
direction, instruction or other document or communication so mailed or sent
shall be deemed to have been duly given, if sent by mail, on the third business
day following the date on which it was deposited at a United States post office,
and if delivered by hand, at the time of delivery by such commercial courier or
delivery service, and, if delivered by overnight delivery service, on the first
business day following the date on which it was delivered to the custody of such
common carrier or commercial courier or delivery service, as all such dates are
evidenced by the applicable delivery receipt, airbill or other shipping or
mailing document.
(e) Severability. In the event that any provision or portion
of this Agreement shall be determined to be invalid or unenforceable for any
reason, the remaining provisions or portions of this Agreement shall be
unaffected thereby and shall remain in full force and effect to the fullest
extent permitted by law.
(f) References. In the event of XxXxxxx'x death or a judicial
determination of XxXxxxx'x incompetence, reference in this Agreement to XxXxxxx
shall be deemed, where appropriate, to refer to XxXxxxx'x legal representative,
or, where appropriate, to XxXxxxx'x beneficiary or beneficiaries.
(g) Headings. Headings contained herein are for convenient
reference only and shall not in any way affect the meaning or interpretation of
this Agreement.
(h) Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
(i) Rules of Construction. The following rules shall apply to
the construction and interpretation of this Agreement:
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(i) Singular words shall connote the plural number as
well as the singular and vice versa, and the masculine shall include the
feminine and the neuter.
(ii) All references herein to particular articles,
paragraphs, sections, subsections, clauses, Schedules or Exhibits are references
to articles, paragraphs, sections, subsections, clauses, Schedules or Exhibits
of this Agreement.
(iii) Each party and its counsel have reviewed and
revised (or requested revisions of) this Agreement, and therefore any rule of
construction requiring that ambiguities are to be resolved against a particular
party shall not be applicable in the construction and interpretation of this
Agreement or any exhibits hereto or amendments hereof.
(iv) As used in this Agreement, "including" is
illustrative, and means "including but not limited to."
(j) Remedies. Remedies specified in this Agreement are in
addition to any others available at law or in equity.
(k) Withholding Taxes. All payments under this Agreement shall
be subject to applicable income, excise and employment tax withholding
requirements.
IN WITNESS WHEREOF, the parties hereto have executed, or have caused
this Agreement to be executed by their duly authorized officer, as the case may
be, all as of the day and year written below.
By: Xxxxxx X. XxXxxxx Date: September 8, 2000
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Xxxxxx X. XxXxxxx
By: /s/Xxxxxxx Xxxxxxxxx III Date: September 29, 2000
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CP&L Service Company LLC
Title: ___________________________________
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