CHANGE IN CONTROL SEVERANCE AGREEMENT
Exhibit
10.1.a
THIS
CHANGE IN CONTROL SEVERANCE AGREEMENT is entered into as of the ___ day of
____________, 2006, between Great Plains Energy Incorporated, a Missouri
corporation ("Great Plains Energy"), and Xxxxxxx X. Xxxxxxx
("Executive").
WITNESSETH:
WHEREAS,
Executive is the Chairman of the Board and Chief Executive Officer of Great
Plain Energy and a valued employee of Great Plains Energy or a subsidiary
thereof (the "Company"); and
WHEREAS,
the Board (as defined herein) believes that it is in the best interests of
the
Company and its shareholders (i) to provide assurance that the Company will
have
the continued service of Executive notwithstanding the possibility, threat
or
occurrence of a Change in Control (as defined in Section 1), (ii) to diminish
the distraction to Executive that may arise by virtue of the personal
uncertainties and risks created by such a threatened or pending Change in
Control, and (iii) to encourage Executive's full attention and dedication to
the
Company currently and in the event of a threatened or pending Change in Control;
and
WHEREAS,
the Board and Executive previously entered into a severance agreement dated
October 1, 2003, the "Prior Severance Agreement" whereby Great Plains Energy
agreed to provide Executive with certain compensation and perquisites following
Executive's termination or constructive termination of employment with the
Company in connection with a change in control or potential change in control
of
Great Plains Energy; and
WHEREAS,
the Board and Executive agree that, in connection with both parties entering
into this Agreement, the Prior Severance Agreement shall be terminated, rendered
null and void, and all duties and rights conferred upon the parties thereto
extinguished, and that such Prior Severance Agreement is replaced in its
entirety with the benefits, duties, terms and conditions set forth in this
Agreement;
NOW,
THEREFORE, in consideration of the premises and the mutual agreements contained
herein, the parties hereto agree as follows:
1. Certain
Definitions.
As used
in this Agreement, unless otherwise defined herein or unless the context
otherwise requires, the following terms shall have the following
meanings:
(a) Agreement.
"Agreement" means this Change in Control Severance Agreement as amended from
time to time.
(b) Beneficial
Owner.
"Beneficial Owner" shall have the same meaning as set forth in Rule 13d-3 of
the
Exchange Act.
(c) Board.
"Board"
means the Board of Directors of Great Plains Energy.
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(d) Cause.
"Cause"
means (i) the material misappropriation of any of the Company's funds,
Confidential Information or property; (ii) the conviction of, or the entering
of
a guilty plea or plea of no contest with respect to, a felony, or the equivalent
thereof; (iii) commission of act of willful damage, willful misrepresentation,
willful dishonesty, or other willful conduct that can reasonably be expected
to
have a material adverse effect on the business, reputation, or financial
situation of the Company; or (iv) gross negligence or willful misconduct in
performance of Executive's duties; provided, however, "cause" shall not exist
under clause (iv), above, with respect to an act or failure to act unless (A)
Executive has been provided written notice describing in sufficient detail
the
acts or failure to act giving rise to the Company's assertion of such gross
negligence or misconduct, (B) been provided a reasonable period to remedy any
such occurrence and (C) failed to sufficiently remedy the
occurrence.
(e) Change
in Control.
"Change
in Control" means the occurrence of one of the following events, whether in
a
single transaction or a series of related transactions:
(i) any
Person is or becomes the Beneficial Owner, directly or indirectly, of securities
of Great Plains Energy (not including in the securities beneficially owned
by
such Person any securities acquired directly from Great Plains Energy or its
affiliates other than in connection with the acquisition by Great Plains Energy
or its affiliates of a business) representing 35% or more of either the then
outstanding shares of common stock of Great Plains Energy or the combined voting
power of Great Plains Energy's then outstanding securities; or
(ii) the
following individuals cease for any reason to constitute a majority of the
number of directors then serving: individuals who, on the date hereof,
constitute the Board and any new director (other than a director whose initial
assumption of office is in connection with an actual or threatened election
contest, including but not limited to a consent solicitation, relating to the
election of directors of Great Plains Energy, as such terms are used in Rule
14a-11 of Regulation 14A under the Exchange Act) whose appointment or election
by the Board or nomination for election by Great Plains Energy's stockholders
was approved by a vote of at least two-thirds (2/3) of the directors then still
in office who either were directors on the date hereof or whose appointment,
election or nomination for election was previously so approved; or
(iii) the
consummation of a merger, consolidation, reorganization or similar corporate
transaction of Great Plains Energy, whether or not Great Plains Energy is the
surviving corporation in such transaction, other than (A) a merger,
consolidation, or reorganization that would result in the voting securities
of
Great Plains Energy outstanding immediately prior thereto continuing to
represent (either by remaining outstanding or by being converted into voting
securities of the surviving entity or any parent thereof), in combination with
the ownership of any trustee or other fiduciary holding securities under an
employee benefit plan of the Company, at least 60% of the combined voting power
of the voting securities of Great Plains Energy or such surviving entity or
any
parent thereof outstanding immediately after such merger, consolidation or
reorganization, or (B) a merger, consolidation or reorganization effected to
implement a recapitalization of Great Plains Energy (or similar transaction)
in
which no Person is or becomes the Beneficial Owner, directly or indirectly,
of
securities of Great Plains Energy (not including in the securities Beneficially
Owned by such Person any securities acquired directly from Great Plains Energy
or its affiliates other than in connection with the acquisition by Great Plains
Energy or its affiliates of a business) representing 20% or more of either
the
then outstanding shares of common stock of Great Plains Energy or the combined
voting power of Great Plains Energy's then outstanding securities; or
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(iv) the
occurrence of, or the stockholders of Great Plains Energy approve a plan of,
a
complete liquidation or dissolution of Great Plains Energy or an agreement
for
the sale or disposition by Great Plains Energy of all or substantially all
of
Great Plains Energy's assets, other than a sale or disposition of all or
substantially all of Great Plains Energy's assets to an entity, at least 60%
of
the combined voting power of the voting securities of which are owned by Persons
in substantially the same proportions as their ownership of Great Plains Energy
immediately prior to such sale.
Notwithstanding
the foregoing, no "Change in Control" shall be deemed to have occurred if there
is consummated any transaction or series of integrated transactions immediately
following which the record holders of the common stock of Great Plains Energy
immediately prior to such transaction or series of transactions continue to
have
substantially the same proportionate ownership in an entity which owns all
or
substantially all of the assets of Great Plains Energy immediately following
such transaction or series of transactions.
(f) Change
in Control Period.
"Change
in Control Period" means the period commencing on the date hereof and ending
on
the second anniversary of such date; provided, however, that commencing on
a
date one year after the date hereof, and on each annual anniversary of such
date
(such date and each annual anniversary thereof being hereinafter referred to
as
the "Renewal Date"), the Change in Control Period shall be automatically
extended so as to terminate two years from such Renewal Date, unless at least
60
days prior to the Renewal Date the Company shall give notice to Executive that
the Change in Control Period shall not be so extended; provided, further that
during any period of time when the Board or the governing body of Great Plains
Energy has knowledge that any person has taken steps reasonably calculated
to
effect a Change in Control, the Change in Control Period shall automatically
be
extended (and may not terminate) until, in the opinion of the Board, such person
has abandoned or terminated its efforts to effect a Change in
Control.
(g) Company.
"Company" means, except as the context requires otherwise, references to Great
Plains Energy Incorporated, a Missouri corporation, its successors and assigns,
and/or any subsidiary thereof, as applicable.
(h) Confidential
Information.
"Confidential Information" means (1) any and all trade secrets concerning the
business and affairs of the Company, product specifications, data, know-how,
formulae, algorithms, compositions, processes, designs, sketches, photographs,
graphs, drawings, samples, inventions and ideas, past, current, and planned
research and development, current and planned manufacturing or distribution
methods and processes, customer lists, current and anticipated customer
requirements, price lists, market studies, business plans, computer software
and
programs (including object code and source code), computer software and database
technologies, systems, structures, and architectures; (2) information concerning
the business and affairs of the Company (which includes historical financial
statements, financial projections and budgets, historical and projected sales,
capital spending budgets and plans, the names and backgrounds of key personnel,
personnel training and techniques and materials); and (3) notes, analysis,
compilations, studies, summaries, and other material prepared by or for the
Company containing or based, in whole or in part, or any information included
in
the foregoing, whether reduced to writing or not and which has not become
publicly known or made generally available through no wrongful act of Executive
or others who were under confidentiality obligations as to the item or items
involved.
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(i) Date
of Termination.
"Date
of Termination" means (i) if Executive's employment is terminated by the Company
for Cause, or by Executive for Good Reason, the date of receipt of the Notice
of
Termination or any later date permitted to be specified therein, as the case
may
be, (ii) if Executive's employment is terminated by the Company other than
for
Cause or Disability, the Date of Termination shall be the date on which the
Company notifies Executive of such termination, (iii) if Executive's employment
is terminated by reason of death or Disability, the Date of Termination shall
be
the date of death of Executive or the Disability Effective Date (as defined
in
Section 2(a)), as the case may be and (iv) if Executive's employment is
terminated by Executive for other than Good Reason, the Date of Termination
shall be the date on which Executive notifies the Company in writing of such
termination or any later date permitted to be specified therein, as the case
may
be.
(j) Disability
or Disabled.
The
term "Disability" or "Disabled" shall mean an individual (i) is unable to engage
in any substantial gainful activity by reason of any medically determinable
physical or mental impairment which can be expected to result in death or can
be
expected to last for a continuous period of not less than twelve (12) months
or
(ii) is, by reason of any medically determinable physical or mental impairment
which can be expected to result in death or can be expected to last for a
continuous period of not less than twelve (12) months, receiving income
replacement benefits for a period of not less than 3 months under a Company
sponsored accident or health plan.
(k) Effective
Date.
"Effective Date" means the first date on which a Change in Control occurs during
the Change in Control Period.
(l) Exchange
Act.
"Exchange Act" means the Securities Exchange Act of 1934, as amended from time
to time.
(m) Good
Reason.
"Good
Reason" means, without Executive's written consent any of the
following:
(i) Any
material and adverse reduction or material and adverse diminution in Executive's
position (including status, offices, titles and reporting requirements),
authority, duties or responsibilities held, exercised or assigned at any time
during the 90-day period immediately preceding the commencement of the Pre-CIC
Protected Period;
(ii) Any
reduction in Executive's annual base salary as in effect immediately preceding
the commencement of the Pre-CIC Protected Period or as the same may be increased
from time to time;
(iii) Any
reduction in benefits received by Executive under Company Plans (as defined
below) to less than the most favorable benefits provided to Executive by the
Company under Company Plans at any time during the 90-day period immediately
preceding the commencement of the Pre-CIC Protected Period. "Company Plans"
means (1) all incentive, savings and retirement plans, practices, policies
and
programs sponsored or maintained by the Company, (2) all welfare benefit plans,
practices, policies and programs (including medical, prescription, dental,
disability, salary continuance, employee life, group life, accidental death
and
travel accident insurance plans and programs) sponsored or maintained by the
Company, (3) expense reimbursement by the Company for all reasonable
out-of-pocket employment expenses incurred by Executive, (4) the provision
of
fringe benefits, and (5) the provision of paid vacation time by the
Company;
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(iv) Executive
being required by the Company to be based at any office or location that is
more
than 70 miles from the location where Executive was employed immediately
preceding the commencement of the Pre-CIC Protected Period; or
(v) Any
failure by the Company to require any successor (whether direct or indirect,
by
purchase, merger, consolidation or otherwise) to all or substantially all of
the
business and/or assets of the Company to assume expressly and agree to perform
this Agreement in the same manner and to the same extent that the Company would
be required to perform it if no such succession had taken place, or any failure
by any such successor after ten (10) days notice from Executive to so perform
under this Agreement.
Provided,
however, notwithstanding the occurrence of any of the events set forth above
in
this Section 1(m), Good Reason shall not include for the purpose of this
definition (1) an isolated, insubstantial and inadvertent action not taken
in
bad faith and which is remedied by the Company promptly after receipt of notice
thereof given by Executive, or (2) if occurring within the Pre-CIC Protected
Period, any reduction in Executive's base annual salary or reduction in benefits
received by Executive where such reduction is in connection with a company-wide
reduction in salaries or benefits.
(n) Notice
of Termination.
"Notice
of Termination" means a written notice of termination which (i) indicates the
specific termination provision in this Agreement relied upon, (ii) to the
extent applicable, sets forth in reasonable detail the facts and circumstances
claimed to provide a basis for termination of Executive's employment under
the
provision so indicated and (iii) if the Date of Termination is other than the
date of receipt of such notice, specifies the termination date (which date
shall
be not more than fifteen (15) days after the giving of such notice), unless
another date is mutually agreed upon between Executive and the
Company.
(o) Person.
"Person" has the meaning given in Section 3(a)(9) of the Exchange Act, as
modified and used in Sections 13(d) and 14(d) thereof, except that such term
shall not include (1) Great Plains Energy or any of its subsidiaries, (2) a
trustee or other fiduciary holding securities under an employee benefit plan
of
the Company or any of its subsidiaries, (3) an underwriter temporarily holding
securities pursuant to an offering of such securities, or (4) a corporation
owned, directly, or indirectly, by the stockholders of Great Plains Energy
in
substantially the same proportions as their ownership of stock of Great Plains
Energy.
(p) Post-Effective
Period.
"Post-Effective Period" means the period commencing on the Effective Date and
ending on the earlier of (i) the second anniversary of such date or
(ii) Executive's 70th
birthday.
(q) Pre-CIC
Protected Period.
"Pre-CIC Protected Period" means the period that is within the Change in Control
Period and begins when (A) Great Plains Energy enters into an agreement, the
consummation of which would result in the occurrence of a Change in Control;
(B)
Great Plains Energy or any Person publicly announces an intention to take or
to
consider taking actions which, if consummated, would constitute a Change in
Control; (C) any Person becomes the Beneficial Owner, directly or indirectly,
of
voting securities of Great Plains Energy representing 10% or more of the
combined voting power of Great Plains Energy's then outstanding voting
securities; or (D) the Board, the members or the stockholders of Great Plains
Energy adopts a resolution approving any of the foregoing or approving any
Change in Control, and ends upon the date the Change in Control transaction
is
either consummated, abandoned or terminated (for this purpose, the Board shall
have the sole and absolute discretion to determine that a proposed transaction
has been abandoned).
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2. Termination
of Employment During the Post-Effective Period.
(a) Death
or Disability.
Executive's employment shall terminate automatically upon Executive's death
or,
with written notice by the Company of its intention to terminate Executive's
employment, upon Executive's Disability. In such event, Executive's employment
with the Company shall terminate effective on the 90th day after receipt of
such
notice by Executive (the "Disability Effective Date"), provided that within
the
90 days after such receipt Executive shall not have returned to full-time
performance of Executive's duties.
(b) Cause.
The
Company may terminate Executive's employment at any time for Cause or without
Cause. Notwithstanding the foregoing, Executive shall not be deemed to have
been
terminated for Cause without (i) reasonable notice to Executive setting forth
the reasons for the Company's intention to terminate for Cause, (ii) an
opportunity for Executive, together with his counsel, to be heard before the
Board within fifteen (15) days of such notice, and (iii) delivery to Executive
of a Notice of Termination from the Board finding that, in the good faith
opinion of the Board, that Executive was guilty of conduct set forth in Section
1(d), and specifying the particulars thereof in reasonable detail.
(c) Executive
Resignation.
Executive's employment may be terminated at any time by Executive for Good
Reason or without Good Reason.
(d) Notice
of Termination.
Any
termination by the Company for Cause, or by Executive for Good Reason, shall
be
communicated by Notice of Termination to the other party hereto. The failure
by
Executive or the Company to set forth in the Notice of Termination any fact
or
circumstance that contributes to a showing of Good Reason or Cause shall not
waive any right of Executive or the Company hereunder or preclude Executive
or
the Company from asserting such fact or circumstance in enforcing Executive's
or
the Company's rights hereunder.
3. Obligations
of the Company Upon Termination of Employment.
(a) Post-Effective
Period Terminations Other Than for Cause, Death or Disability; Post-Effective
Period Executive Resignation.
If,
during the Post-Effective Period, the Company shall terminate Executive's
employment other than (I) for Cause or (II) on account of Executive's death
or
Disability, or Executive shall terminate employment for Good Reason, the Company
shall pay to Executive, in a lump-sum cash payment made within 30 days following
the Date of Termination, as compensation for services rendered to the Company,
an amount equal to the aggregate of the following amounts set forth below in
Sections 3(a)(i), (ii), (iii), and (iv), and provide to Executive the benefits
provided in Section 3(a)(v).
(i) A
cash
amount equal to the sum of (A) Executive's full annual base salary from the
Company and its affiliated companies through the Date of Termination, to the
extent not theretofore paid, (B) a bonus in an amount at least equal to the
average annualized incentive awards paid or payable pursuant to any
Company-sponsored annual incentive compensation plan, including by reason of
any
deferral under a Company-sponsored deferred compensation program, to Executive
by the Company and its affiliated companies during the five fiscal years of
the
Company (or if Executive shall have performed services for the Company and
its
affiliated companies for four fiscal years or less, the years during which
Executive performed services) immediately preceding the fiscal year in which
the
Change in Control (or if benefits are payable pursuant to Section 3(c), the
Date
of Termination) occurs, multiplied by a fraction, the numerator of which is
the
number of days in the fiscal year in which the Date of Termination occurs
through the Date of Termination and the denominator of which is 365 or 366,
as
applicable, to the extent not theretofore paid, (C) any amount credited to
Executive's CAP Excess Benefits Account pursuant to the Great Plains Energy
Incorporated Nonqualified Deferred Compensation Plan and any other compensation
previously deferred by Executive (together with any interest and earnings
thereon), in each case to the extent not theretofore paid, and (D) any accrued
unpaid vacation pay;
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(ii) a
cash
amount equal to (A) three (3) times Executive's highest annual base salary
from
the Company and its affiliated companies in effect during the twelve (12)-month
period prior to the Date of Termination, plus (B) three (3) times Executive's
average annualized annual incentive compensation awards, paid, or, but for
a
deferral under a Company-sponsored deferred compensation program, would have
been paid, to Executive by the Company and its affiliated companies during
the
five fiscal years of the Company (or if Executive shall have performed services
for the Company and its affiliated companies for four fiscal years or less,
the
years during which Executive performed services) immediately preceding the
fiscal year in which the Change in Control (or if benefits are payable pursuant
to Section 3(c), the Date of Termination) occurs; provided, however, that in
the
event there are fewer than thirty-six (36) whole months remaining from the
Date
of Termination to the date of Executive's 70th birthday, the amount calculated
in accordance with this Section 3(a)(ii) shall be reduced by multiplying such
amount by a fraction the numerator of which is the number of months, including
a
partial month (with a partial month being expressed as a fraction the numerator
of which is the number of days remaining in such month and the denominator
of
which is the number of days in such month), so remaining and the denominator
of
which is thirty-six (36) months; provided further that any amount paid pursuant
to this Section 3(a)(ii) shall be paid in lieu of any other amount of severance
pay to be received by Executive upon termination of employment of Executive
under any severance plan, policy or arrangement of the Company;
(iii) a
cash
amount equal to the excess of (A) the actuarial equivalent value of the monthly
accrued benefits payable to Executive at age 65 under the Great Plains Energy
Incorporated Management Pension Plan (the "Pension Plan") as in effect on the
date of this Agreement and the benefits provided under the Supplemental
Executive Retirement Plan in respect of the Pension Plan as in effect on the
date of this Agreement, assuming (1) that benefits have accrued thereunder
and
Executive is entitled to such benefits, (2) each such benefit shall be computed
as if Executive had two Years of Credited Service for every one actual Year
of
Credited Service earned under the Pension Plan, plus six additional Years of
Credited Service earned under the Pension Plan and (3) Executive were fully
vested in such hypothetical benefits, over (B) the actuarial equivalent value
of
Executive's vested accrued benefits under the Pension Plan and benefits payable
under the Supplemental Executive Retirement Plan computed as if Executive had
two Years of Credited Service for every one actual Year of Credited Service
earned under the Pension Plan. Such cash amount shall be computed using the
same
actuarial methods and assumptions then in use for purposes of computing benefits
under the Pension Plan, except that the computation shall be made without
actuarial reduction for early retirement and provided that the interest rate
used in such computation shall be the interest rate used on the Date of
Termination by the Pension Benefit Guaranty Corporation for purposes of
determining the present value of a lump sum distribution pursuant to a plan
termination;
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(iv) if
on the
Date of Termination Executive shall not be fully vested in the matching employer
contributions made on Executive's behalf under the Great Plains Energy
Incorporated Cash or Deferred Arrangement, a cash amount equal to the value
of
the unvested portion of such matching employer contributions;
(v) for
a
period of three (3) years commencing on the Date of Termination, the Company
shall provide Executive and Executive's dependents with medical, accident,
disability and life insurance coverage upon substantially the same terms and
otherwise substantially to the same extent as such coverage was being provided
to Executive and Executive's dependent(s) immediately prior to the Date of
Termination. At the Company's election, such continuation coverage may be
provided by (A) continuing such coverage under the Company's existing welfare
benefit plans, (B) with respect to any group health care plan and for the
applicable period permitted under Code Section 4980B(f)(2), Executive and/or
Executive's dependent(s) being deemed to have elected to receive such coverage
pursuant to a continuation election under Code Section 4980B with the Company
being obligated to pay for the entire portion of the applicable COBRA premiums,
(C) the Company purchasing an individual policy (to the extent such a policy
is
reasonably available in the marketplace) for Executive and/or Executive's
dependent(s) providing substantially similar coverage as offered under the
Company's plan, or (D) any combination of the forgoing methods under (A), (B)
and (C) of this paragraph. Notwithstanding the foregoing sentence, if any of
the
medical, accident, disability or life insurance plans then in effect generally
with respect to other peer executives of the Company and its affiliated
companies would be more favorable to Executive, such plan coverage shall be
substituted for the analogous plan coverage provided to Executive immediately
prior to the Date of Termination, and the Company and Executive shall share
the
costs of such plan coverage in the same proportion as such costs were shared
immediately prior to the Date of Termination. The obligation of the Company
to
continue coverage of Executive and Executive's dependent(s) under such plans
and
in accordance with this paragraph shall cease at such time as Executive and
Executive's dependent(s) obtain comparable coverage under another plan,
including a plan maintained by a new employer. With respect to any Company
group
health care plan, any continuation coverage provided under this paragraph shall
be considered as alternative continuation coverage to any rights Executive
or
Executive's dependent(s) may have with respect to any other group health plan
continuation coverage required by Code Section 4980B or any applicable state
statute mandating health insurance continuation coverage. Except to the extent
required by law, upon termination of the coverage provided for under this
Section 3(a)(v), Executive and/or Executive's dependent(s) shall have no further
right to continuation of coverage under any group health plan maintained by
the
Company or its affiliated companies.
(b) Termination
for Cause, Disability, Death or Other than for Good Reason.
If at
any time during the Change in Control Period Executive's employment shall be
terminated for Cause, Executive's employment is terminated due to Executive's
death or Disability, or if Executive terminates employment other than for Good
Reason, this Agreement shall terminate without further obligation of the Company
to Executive other than (i) the obligation to pay to Executive his or her base
salary through the Date of Termination, any incentive bonus and other
compensation, payments and benefits for the most recently completed fiscal
year
and any accrued vacation pay, to the extent theretofore unpaid, which amounts
shall be paid to Executive in a lump sum in cash within thirty (30) days of
the
Date of Termination, and (ii) the obligation to pay to Executive all amounts
or
benefits to which Executive is entitled for the period prior to the Date of
Termination under any plan, program, policy, practice, contract or agreement
of
the Company (excluding amounts otherwise required to be paid under this Section
3(b)), at the time such amounts or benefits are due.
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(c) Certain
Terminations During Pre-CIC Protected Period.
If,
during the Pre-CIC Protected Period, Executive's employment is terminated by
the
Company other than for Cause or Executive terminates his or her employment
for
Good Reason, then Executive shall be entitled to receive the same benefits
he or
she would be entitled to receive under Section 3(a) if such termination of
employment would have occurred during the Post-Effective Period. Any benefits
or
payments to be paid pursuant to this Section 3(c) shall be paid in a lump-sum
payment and, subject to Section 3(d), within thirty (30) days following the
termination of Executive's employment.
(d) Payments
to Executive Following Termination.
If (i)
Executive is a "specified employee," as defined in Code section
409A(a)(1)(B)(i), and (ii) Executive's employment is terminated, either by
Executive or by the Company, due to any reason, other than Executive's death,
then, notwithstanding Sections 3(a) or 3(c) of this Agreement, Executive shall
not receive any payment pursuant to Sections 3(a) or 3(c) until the first
business day after six full months after Executive's Date of Termination.
4. Section
280G Gross-Up.
(a) Except
as
provided for in Section 4(e) below and notwithstanding any other provision
in
this Agreement to the contrary, in the event it shall be determined that any
payment or distribution by the Company or its affiliated companies to or for
the
benefit of Executive (whether paid or payable or distributed or distributable
pursuant to the terms of this Agreement or otherwise, but determined without
regard to any additional payments required under this Section 4) (a "Payment")
would be subject to the excise tax imposed by Section 4999 of the Code, or
any
interest or penalties are incurred by Executive with respect to such excise
tax
(such excise tax, together with any such interest and penalties, are hereinafter
collectively referred to as the "Excise Tax"), then the Company shall pay to
Executive an additional payment (a "Gross-Up Payment") in an amount such that
after payment by Executive of all taxes (including any interest or penalties
imposed with respect to such taxes), including, without limitation, any income
taxes (except for any income tax under Section 409A of the Code), any interest
and penalties imposed with respect thereto, and Excise Tax imposed upon the
Gross-Up Payment,
Executive retains an amount of the Gross-Up Payment equal to the Excise Tax
imposed upon the Payments.
(b) Subject
to the provisions of Section 4(c), all determinations required to be made under
this Section 4, including whether and when a Gross-Up Payment is required and
the amount of such Gross-Up Payment and the assumptions to be utilized in
arriving at such determination, shall be made by an independent registered
public accounting firm selected by the Company that is not also the Company's
then current accounting firm for annual audit purposes (the "Accounting Firm")
which shall provide detailed supporting calculations both to the Company and
Executive within fifteen (15) business days of the receipt of notice from
Executive that there has been a Payment, or such earlier time as is requested
by
the Company. In the event that the Accounting Firm is serving as accountant
or
auditor for the individual, entity or group effecting the Change in Control,
Executive shall appoint another nationally recognized public accounting firm
to
make the determinations required hereunder (which accounting firm shall then
be
referred to as the Accounting Firm hereunder). All fees and expenses of the
Accounting Firm shall be borne solely by the Company. Any Gross-Up Payment,
as
determined pursuant to this Section 4, shall be paid by the Company to Executive
within five (5) days of the receipt of the Accounting Firm's determination,
but
in no event later than the time set forth in Section 4(f), below. If the
Accounting Firm determines that no Excise Tax is payable by Executive, it shall
furnish Executive with a written opinion that failure to report the Excise
Tax
on Executive's applicable federal income tax return would not result in the
imposition of a negligence or similar penalty. Any determination by the
Accounting Firm shall be binding upon the Company and Executive. As a result
of
the uncertainty in the application of Section 4999 of the Code at the time
of
the initial determination by the Accounting Firm hereunder, it is possible
that
Gross-Up Payments which will not have been made by the Company should have
been
made ("Underpayment"), consistent with the calculations required to be made
hereunder. In the event that the Company exhausts its remedies pursuant to
Section 4(c) and Executive thereafter is required to make a payment of any
Excise Tax, the Accounting Firm shall determine the amount of the Underpayment
that has occurred and any such Underpayment shall be promptly paid by the
Company to or for the benefit of Executive.
9
(c) Executive
shall notify the Company in writing of any claim by the Internal Revenue Service
that, if successful, would require the payment by the Company of the Gross-Up
Payment. Such notification shall be given as soon as practicable but no later
than ten (10) business days after Executive is informed in writing of such
claim
and shall apprise the Company of the nature of such claim and the date on which
such claim is requested to be paid. Executive shall not pay such claim prior
to
the expiration of the thirty (30) day period following the date on which
Executive gives such notice to the Company (or such shorter period ending on
the
date that any payment of taxes with respect to such claim is due). If the
Company notifies Executive in writing prior to the expiration of such period
that it desires to contest such claim, Executive shall:
(i) give
the
Company any information reasonably requested by the Company relating to such
claim;
(ii) take
such
action in connection with contesting such claim as the Company shall reasonably
request in writing from time to time, including, without limitation, accepting
legal representation with respect to such claim by an attorney reasonably
selected by the Company;
(iii) cooperate
with the Company in good faith in order effectively to contest such claim;
and
(iv) permit
the Company to participate in any proceedings relating to such claim; provided,
however, that the Company shall bear and pay directly all costs and expenses
(including additional interest and penalties) incurred in connection with such
contest and shall indemnify and hold Executive harmless, on an after-tax basis,
for any Excise Tax or income tax (including interest and penalties with respect
thereto) imposed as a result of such representation and payment of costs and
expenses. Without limitation on the foregoing provisions of this Section 4(c),
the Company shall control all proceedings taken in connection with such contest
and, at its sole option, may pursue or forgo any and all administrative appeals,
proceedings, hearings and conferences with the taxing authority in respect
of
such claim and may, at its sole option, either direct Executive to pay the
tax
claimed and xxx for a refund or contest the claim in any permissible manner,
and
Executive shall prosecute such contest to a determination before any
administrative tribunal, in a court of initial jurisdiction and in one or more
appellate courts, as the Company shall determine; provided further, that if
the
Company desires Executive to pay such claim and xxx for a refund, the Company
shall, on Executive's behalf, pay such claim and on an after-tax basis reimburse
Executive from any Excise Tax or income tax (including interest or penalties
with respect thereto) imposed with respect to such payment and provided further,
that any extension of the statute of limitations relating to payment of taxes
for the taxable year of Executive with respect to which such contested amount
is
claimed to be due is limited solely to such contested amount. Furthermore,
the
Company's control of the contest shall be limited to issues with respect to
which a Gross-Up Payment would be payable hereunder and Executive shall be
entitled to settle or contest, as the case may be, any other issue raised by
the
Internal Revenue Service or any other taxing authority.
10
(d) If,
after
payment by the Company pursuant to Section 4(c), Executive becomes entitled
to
receive, and receives, any refund with respect to such claim, Executive shall
(subject to the Company's complying with the requirements of Section 4(c))
promptly pay to the Company the amount of such refund (together with any
interest paid or credited thereon after taxes applicable thereto). If, after
payment of an amount by the Company pursuant to Section 4(c), a determination
is
made that Executive shall not be entitled to any refund with respect to such
claim and the Company does not notify Executive in writing of its intent to
contest such denial of refund prior to the expiration of thirty (30) days after
such determination, then such payment shall offset, to the extent thereof,
the
amount of Gross-Up Payment required to be paid.
(e) Notwithstanding
Executive otherwise being eligible for a Gross-Up Payment under this Section
4,
if, excluding any Gross-Up Payment required to be made pursuant to this Section
4, the "parachute payment" made to Executive does not exceed three times
Executive's "base amount" by more than $1,000, then the payments and benefits
to
be paid or provided under this Agreement will be reduced to the minimum extent
necessary so that no portion of any payment or benefit to Executive, as so
reduced, constitutes an "excess parachute payment." For purposes of this Section
4(e), the terms "excess parachute payment," "parachute payment," and "base
amount" will have the meanings assigned to them by Section 280G of the Code.
The
determination of whether any reduction in such payments or benefits to be
provided under this Agreement is required pursuant to the preceding sentence
will be made at the expense of the Company by the Accounting Firm. The fact
that
Executive's right to payments or benefits may be reduced by reason of the
limitations contained in this Section 4(e) will not of itself limit or otherwise
affect any other rights of Executive other than pursuant to this Agreement.
In
the event that any payment or benefit intended to be provided under this
Agreement or otherwise is required to be reduced pursuant to this Section 4(e),
Executive will be entitled to designate the payments and/or benefits to be
so
reduced in order to give effect to this Section. The Company will provide
Executive with all information reasonably requested by Executive to permit
Executive to make such designation. In the event that Executive fails to make
such designation within 10 business days of the date of termination of
Executive's employment, the Company may effect such reduction in any manner
it
deems appropriate.
(f) Any
Gross-Up Payment made to Executive pursuant to this Section 4 shall be exempt
from Code Section 409A pursuant to the short-term deferral exception to Code
Section 409A. Absent further guidance from the United States Treasury
Department, the Internal Revenue Service or any judicial authority relating
to
the application of Section 409A to Section 280G Gross-Up Payments, Gross-Up
Payments pursuant to this Section 4 shall be made as follows:
11
(i) With
respect to any Gross-Up Payment that can be reasonably calculated as of the
time
of a Change in Control or shortly thereafter, such Gross-Up Payment shall be
made to Executive no later than March 15th of the calendar year following the
year in which the Change in Control occurs;
(ii) With
respect to any Gross-Up Payment that results from Executive becoming eligible
for benefits under this Agreement upon Executive's termination of employment,
such Gross-Up Payment shall be made to Executive no later than March 15th of
the
calendar year following the year in which the earlier of (A) the event giving
rise to Executive's Good Reason occurs or (B) Executive's termination of
employment; and
(iii) With
respect to any Gross-Up Payment that is required to be made to Executive
pursuant to Section 4(c), such Gross-Up Payment shall be made to Executive
no
later than March 15th of the calendar year following the year in which the
alleged obligation of Executive, as reflected by Executive's receipt of a claim
by the Internal Revenue Service, is received by Executive.
5. Non-exclusivity
of Rights.
Nothing
in this Agreement shall prevent or limit Executive's continuing or future
participation in any plan, program, policy or practice provided by the Company
and for which Executive may qualify, nor shall anything herein limit or
otherwise affect such rights as Executive may have under any contract or
agreement with the Company. Amounts that are vested benefits or that Executive
is otherwise entitled to receive at or subsequent to the Date of Termination
under any plan, policy, practice or program of or any contract or agreement
with
the Company shall be payable in accordance with such plan, policy, practice
or
program or contract or agreement, except as explicitly modified by this
Agreement.
6. Full
Settlement; Resolution of Disputes.
(a) Except
where Executive's employment is terminated for Cause, the Company's obligation
to make any payments provided for in this Agreement and otherwise to perform
its
obligations hereunder shall not be affected by any set-off, counterclaim,
recoupment, defense or other claim, right or action which the Company may have
against Executive or others. In no event shall Executive be obligated to seek
other employment or take any other action by way of mitigation of the amounts
payable to Executive under any of the provisions of this Agreement and such
amounts shall not be reduced whether or not Executive obtains other employment.
Subject to Executive's agreement to repay certain fees and expenses as provided
below in Section 6(b), the Company shall pay promptly as incurred, to the full
extent permitted by law, all legal fees and expenses that Executive may
reasonably incur as a result of any dispute or contest (regardless of the
outcome thereof) by the Company, Executive or others of the validity or
enforceability of, or the existence of liability under, any provision of this
Agreement or any guarantee of performance thereof (including as a result of
any
contest by Executive about the amount of any payment pursuant to this
Agreement), plus in each case interest on any delayed payment at one hundred
twenty percent (120%) of the Federal Mid-Term Rate under Section 1274(d) of
the
Code.
(b) If
there
shall be any dispute or contest between the Company and Executive (i) in the
event of any termination of Executive's employment by the Company, whether
such
termination was for Cause, or (ii) in the event of any termination of employment
by Executive whether Good Reason existed, then the resolution of such dispute
or
contest shall be finally determined by arbitration, which may be initiated
by
either the Company or Executive, pursuant to the Federal Arbitration Act in
accordance with the rules then in force of the American Arbitration Association.
The arbitration proceedings shall take place in Kansas City, Missouri or such
other location as the parties in dispute hereafter may agree upon; and such
proceedings will be conducted in the English language and shall be governed
by
the laws of the State of Missouri as such laws are applied to agreements between
residents of the State entered into and to be performed entirely within the
State. There shall be one arbitrator, as shall be agreed upon by the parties
in
dispute, who shall be an individual skilled in the legal and business aspects
of
the subject matter of this Agreement and of the dispute. In the absence of
such
agreement, each party in dispute shall select one arbitrator and the arbitrators
so selected shall select a third arbitrator. In the event the arbitrators cannot
agree upon the selection of a third arbitrator, such third arbitrator shall
be
appointed by the American Arbitration Association at the request of any of
the
parties in dispute. The arbitrators shall be individuals skilled in the legal
and business aspects of the subject matter of this Agreement and of the dispute.
The decision rendered by the arbitrator or arbitrators shall be accompanied
by a
written opinion in support thereof. Such decision shall be final and binding
upon the parties in dispute without right of appeal, it being the intent of
the
parties that such decision, and, irrespective of any contrary provision of
the
laws of the State respecting rights of appeal, such decision may not be
appealed. The burden of proving that Executive is not entitled to receive the
amounts and the benefits contemplated by this Agreement shall be on the Company.
12
(c) In
the
event of such an arbitration and provided that Executive shall repay the
following amounts, fees and expenses if the final and binding decision of the
arbitrator(s) is that Executive's termination was for Cause or that Good Reason
did not exist for termination of employment by Executive, (i) Great Plains
Energy shall advance to Executive all legal fees and expenses that Executive
may
reasonably incur as a result of any such action, and (ii) if a final and binding
decision of the arbitrator(s) is not obtained by the six-month anniversary
of
the date the Company or Executive first provided notice to the other party
of
the dispute or contest (the "Dispute Notice"), Great Plains Energy shall pay
all
amounts, and provide all benefits, to Executive and/or Executive's family or
other beneficiaries, as the case may be, that Great Plains Energy would be
required to pay or provide pursuant to Sections 3(a) or 3(c) if such termination
were by the Company without Cause or by Executive with Good Reason. If the
final
and binding decision of the arbitrator(s) is that Executive's termination was
not for Cause or that Good Reason did exist for such termination by Executive
then, (I) if such decision is before the six-month anniversary of the receipt
of
the Dispute Notice, Executive shall receive all payments and benefits
contemplated by this Agreement, plus interest on any delayed payment or benefit
at one hundred twenty percent (120%) of the Federal Mid-Term Rate under Section
1274(d) of the Code or (II) if such decision is after the six-month anniversary
of the receipt of the Dispute Notice such that all payments and benefits
contemplated by this Agreement have already been paid, Executive shall receive
interest (calculated in the same manner as set forth above) for the six-month
period the payments and provision of benefits were delayed. In no event may
the
arbitrator or arbitrators award any other damages or award of any kind.
Notwithstanding the foregoing, nothing in this Agreement is intended to, or
shall be construed as, affecting the rights and obligations of Executive and
the
Company to submit any dispute (other than such disputes contemplated by, and
resolved in accordance with Sections 6(b) and 6(c)) to the appropriate dispute
resolution process in accordance with any applicable dispute resolution plan
intended to provide a procedural mechanism, whether exclusive or non-exclusive,
for the resolution of any and all disputes between the Company and its present
or former employees.
7. Restrictive
Covenants.
(a) Nondisclosure
of Confidential Information.
Executive shall hold in confidence for the benefit of the Company all
Confidential Information. Executive agrees that Executive will not disclose
any
Confidential Information to any person or entity other than the Company and
those designated by it, either during or subsequent to Executive's employment
by
the Company, nor will Executive use any Confidential Information, except (i)
in
the regular course of Executive's employment by the Company, without the prior
written consent of the Company or (ii) as may otherwise be required by law
or
legal process.
13
(b) Actions
Upon Termination; Assistance with Claims.
Upon
Executive's employment termination for whatever reason, Executive shall neither
take or copy nor allow a third party to take or copy, and shall deliver to
the
Company all property of the Company, including, but not limited to, all
Confidential Information regardless of the medium (i.e., hard copy, computer
disk, CD ROM) on which the information is contained. During and after
Executive's employment by the Company, Executive will provide reasonable
assistance to the Company in the defense of any claims or potential claims
that
may be made or threatened to be made against the Company in any action, suit,
or
proceeding, whether civil, criminal, administrative, or investigative
("Proceeding") and will provide reasonable assistance to the Company in the
prosecution of any claims that may be made by the Company in any Proceeding,
to
the extent that such claims may relate to Executive's employment by the Company.
For the avoidance of doubt, reasonable assistance would not include Executive
being required to provide information that could reasonably result in criminal
or civil charges or penalties being assessed or imposed against Executive in
his
individual capacity. Executive shall, unless precluded by law, promptly inform
the Company if Executive is asked to participate (or otherwise become involved)
in any Proceeding involving such claims or potential claims. Executive also
shall, unless precluded by law, promptly inform the Company if Executive is
asked to assist in any investigation (whether governmental or private) of the
Company (or its actions), regardless of whether a lawsuit has then been filed
against the Company with respect to such investigation. The Company shall
reimburse Executive for all of Executive's reasonable out-of-pocket expenses
associated with such assistance, including travel expenses and any attorneys'
fees and shall pay a reasonable per diem fee (equal to 1/250th of Executive's
annual salary rate at Executive's Date of Termination) for Executive's
services.
(c) Noncompetition.
Executive agrees that so long as Executive is employed by the Company and for
a
period of six (6) months thereafter, Executive shall not, without the prior
written consent of the Company, which in the case of termination will not be
unreasonably withheld, participate or engage in, directly or indirectly (as
an
owner, partner, employee, officer, director, independent contractor, consultant,
advisor or in any other capacity calling for the rendition of services, advice,
or acts of management, operation or control), any business that, during
Executive's employment, is in direct competition with the business conducted
by
the Company or any of its affiliates within the United States (hereinafter,
the
"Geographic Area"); provided, however, that the foregoing shall not be construed
to preclude Executive from making any investments in any securities to the
extent such securities are traded on a national securities exchange or
over-the-counter market and such investment does not exceed five percent (5%)
of
the issued and outstanding voting securities of such issuer.
(d) Nonsolicitation
of Employees.
During
Executive's employment and for a period of six (6) months thereafter, Executive
shall not, without the consent of the Company, directly or indirectly solicit
any current employee of the Company or any of its affiliates, to leave such
employment and join or become affiliated with any business that is in direct
competition with the business conducted by the Company or any of its affiliates
within the Geographic Area.
14
(e) Mutual
Non-disparagement.
Executive shall refrain from making any statements about the Company or its
officers or directors that would disparage, or reflect unfavorably upon the
image or reputation of the Company or any such officer or director. The Company
shall refrain from making any statements about Executive that would disparage,
or reflect unfavorably upon the image or reputation of, Executive.
(f) Irreparable
Harm.
Executive acknowledges that: (i) Executive's compliance with this Section 7
is
necessary to preserve and protect the Confidential Information, and the goodwill
of the Company and its affiliates as going concerns; (ii) any failure by
Executive to comply with the provisions of this Section may result in
irreparable and continuing injury for which there may be no adequate remedy
at
law; and (iii) in the event that Executive should fail to comply with the terms
and conditions of this Section, the Company shall be entitled, in addition
to
such other relief as may be proper, to seek all types of equitable relief
(including, but not limited to, the issuance of an injunction and/or temporary
restraining order) as may be necessary to cause Executive to comply with this
Section, to restore to the Company its property, and to make the Company
whole.
(g) Unenforceability.
If any
provision(s) of this Section 7 shall be found invalid or unenforceable, in
whole
or in part, then such provision(s) shall be deemed to be modified or restricted
to the extent and in the manner necessary to render the same valid and
enforceable, or shall be deemed excised from this Agreement, as the case may
require, and this Agreement shall be construed and enforced to the maximum
extent permitted by law, as if such provision(s) had been originally
incorporated herein as so modified or restricted, or as if such provision(s)
had
not been originally incorporated herein, as the case may be.
8. Successors.
(a) This
Agreement is personal to Executive and shall not be assignable by Executive
without the prior written consent of the Company otherwise than by will or
the
laws of descent and distribution. If Executive should die while any amounts
would still be payable to Executive hereunder if she or he had continued to
live, all such amounts, unless otherwise provided herein, shall be paid in
accordance with the terms of this Agreement to Executive's heirs or
representatives or, if there be no such designee, to Executive's
estate.
(b) This
Agreement shall inure to the benefit of and be binding upon the Company and
its
successors and assigns.
(c) The
Company will require any successor (whether direct or indirect, by purchase,
merger, consolidation or otherwise) to all or substantially all of the business
and/or assets of the Company to assume expressly and agree to perform this
Agreement in the same manner and to the same extent that the Company would
be
required to perform it if no such succession had taken place. As used in this
Agreement, "Company" shall mean the Company as hereinbefore defined and any
successor to its business and/or assets as aforesaid which assumes and agrees
to
perform this Agreement by operation of law, or otherwise.
9. Prohibition
of Payments by Regulatory Agencies.
Notwithstanding anything to the contrary contained in this Agreement, the
Company shall not be obligated to make any payment to Executive under this
Agreement if the payment would violate any rule, regulation or order of any
regulatory agency having jurisdiction over the Company or any of its
subsidiaries; provided, however, that the Company covenants to Executive that
it
will take all reasonable steps to obtain any regulatory agency approvals that
may be required in order to make payments to Executive as provided herein.
15
10. Miscellaneous.
(a) This
Agreement shall be governed by and construed in accordance with the laws of
the
State of Missouri without reference to principles of conflict of laws. The
captions of this Agreement are not part of the provisions hereof and shall
have
no force or effect. This Agreement may not be amended or modified otherwise
than
by a written agreement executed by the parties hereto. This Agreement supersedes
all previous agreements relating to the subject matter of this Agreement,
written or oral, between the parties hereto and contains the entire
understanding of the parties hereto including, but not limited to that Prior
Severance Agreement dated October 1, 2003, between the Board and
Executive.
(b) All
notices and other communications hereunder shall be in writing and shall be
given by hand delivery to the other party or by registered or certified mail,
return receipt requested, postage prepaid, addressed as follows:
|
If
to the Company:
|
If
to Executive:
|
|
|
Great
Plains Energy Incorporated
|
Xxxxxxx
X. Xxxxxxx
|
|
|
Attn:
General Counsel
|
Great
Plains Energy Incorporated
|
|
|
1201
Walnut
|
1201
Walnut
|
|
|
Kansas
City, Missouri
|
Xxxxxx
Xxxx, Xxxxxxxx
|
|
|
00000-0000
|
64106-2124
|
|
or
to
such other address as either party shall have furnished to the other in writing
in accordance herewith. Notice and communications shall be effective when
actually received by the addressee.
(c) The
invalidity or unenforceability of any provision of this Agreement shall not
affect the validity or enforceability of any other provision of this Agreement,
which other provisions shall remain in full force and effect.
(d) This
Agreement is intended to meet the requirements of Section 409A of the Code
and
may be administered in a manner that is intended to meet those requirements
and
shall be construed and interpreted in accordance with such intent. To the extent
that any payment or benefit provided hereunder is subject to Section 409A of
the
Code, such payment or benefit shall be provided in a manner that will meet
the
requirements of Section 409A of the Code, including regulations or other
guidance issued with respect thereto, such that the payment or benefit shall
not
be subject to the excise tax applicable under Section 409A of the Code. Any
provision of this Agreement that would cause any payment or benefit to fail
to
satisfy Section 409A of the Code shall be amended (in a manner that as closely
as practicable achieves the original intent of this Agreement) to comply with
Section 409A of the Code on a timely basis, which may be made on a retroactive
basis, in accordance with regulations and other guidance issued under Section
409A of the Code. In the event additional regulations or other guidance is
issued under Section 409A of the Code or a court of competent jurisdiction
provides additional authority concerning the application of Section 409A with
respect to the payments described in Section 4 of the Agreement, then the
provisions of such Section shall be amended to permit such payments to be made
at the earliest time permitted under such additional regulations, guidance
or
authority that is practicable and achieves the original intent of this
Agreement.
16
(e) The
Company may withhold from any amounts payable under this Agreement such federal,
state or local taxes as shall be required to be withheld pursuant to any
applicable law or regulation.
(f) Executive's
or the Company's failure to insist upon strict compliance with any provision
of
this Agreement or the failure to assert any right Executive or the Company
may
have hereunder, including, without limitation, the right of Executive to
terminate employment for Good Reason, shall not be deemed to be a waiver of
such
provision or right or any other provision or right of this
Agreement.
(g) Executive
and Great Plains Energy acknowledge that, except as may otherwise be provided
under any other written agreement between Executive and the Company, the
employment of Executive by the Company is "at will" and, may be terminated
by
either Executive or the Company at any time. Except as provided in Section
3(c),
if prior to the Effective Date, Executive's employment with the Company
terminates, then Executive shall have no further rights under this
Agreement.
(h) This
Agreement may be executed in any number of counterparts, each of which shall
be
deemed to be an original and all of which shall constitute one agreement that
is
binding upon each of the parties hereto, notwithstanding that all parties are
not signatories to the same counterpart.
IN
WITNESS WHEREOF, each of Great Plains Energy and Executives has executed this
Agreement as of the day and year first above written.
|
GREAT
PLAINS ENERGY INCORPORATED
|
||
|
EXECUTIVE:
|
||
|
By:
|
||
|
Name:
|
Xxxxxxx
X. Xxxxxxx
|
|
|
Title:
|
||
17
