AMENDMENT NUMBER ONE TO THE VECTREN CORPORATION EMPLOYMENT AGREEMENT
Exhibit
10.2
AMENDMENT
NUMBER ONE
TO
THE VECTREN CORPORATION
This
Amendment Number One to the Vectren Corporation Employment Agreement (this
“Amendment”) is entered into to be effective as of _______________________ (the
“Effective Date”) between Vectren Corporation (the “Company”) and
_______________________ (the “Executive”).
1. The
second sentence of Section 3(c) of the Original Agreement is hereby amended and
restated to read as follows:
“For
purposes of this Agreement and before the conclusion of the Window Period (as
defined in Section 3(f) below), “Good Reason” shall mean a material breach by
the Company of this Agreement and shall not be deemed to exist unless and until
the Executive provides the Company with a notice specifying the grounds for Good
Reason within a period not to exceed ninety (90) days of the initial existence
of the condition of Good Reason (and providing the Company an opportunity to
remedy the condition within thirty (30) days thereafter).”
2. In
Section 4(a)(i)A(3) of the Original Agreement the words “any compensation
previously deferred by the Executive (together with any accrued interest or
earnings thereon) and any other nonqualified benefit plan balances to the extent
not theretofore paid” are hereby deleted and replaced with the words
“[intentionally omitted]”.
3. Section
4(a)(ii) of the Original Agreement is hereby amended by adding the following to
the end of Section 4(a)(ii) just after the word “be” and before the “;”: “as
long as such acceleration is not an impermissible acceleration of the payment
date under Section 409A of the Code and the regulations promulgated
thereunder”.
4. [THE FOLLOWING APPLIES TO 3x AND 2x
AGREEMENTS] The following new Section 8(f) is hereby added to
the Original Agreement to read in its entirety as follows:
“(f) Any
payment required under this Section 8 shall be made by the end of the
Executive’s taxable year next following the Company’s taxable year in which the
Executive remits the payment. In addition, any right to reimbursement
of expenses incurred due to a tax audit or litigation addressing the existence
or amount of a tax liability, whether Federal, state, local, or foreign, shall
be made by the end of the Executive’s taxable year following the Executive’s
taxable year in which the taxes that are the subject of the audit or litigation
are remitted to the taxing authority, or where as a result of such audit or
litigation no taxes are remitted, the end of the Executive’s taxable year
following the Executive’s taxable year in which the audit is completed or there
is a final and nonappealable settlement or other resolution of the
litigation. This Section 8(f) shall be interpreted consistent with
Treas. Reg. § 409A-3(i)(1)(v).”
4. [THE FOLLOWING APPLIES TO 1x
AGREEMENTS] The following is hereby added to the end of
Section 8 of the Original Agreement:
“The
payments shall be reduced by eliminating or reducing those payments in a manner
that produces the greatest economic advantage to the Executive and if reduction
of two or more specific payments produce the same economic advantage, they shall
be adjusted or reduced pro rata.”
5. The
following new Section 11 is hereby added to the Original Agreement to read in
its entirety as follows:
“11. Application of Section
162(m). If the Company reasonably anticipates that the
Company’s deduction with respect to any payment under this Agreement would not
be permitted due to the application of Section 162(m) of the Code, then to the
extent permitted by Treas. Reg. §1.409A-2(b)(7)(i), payment shall be delayed
until the Executive’s first taxable year in which the Company reasonably
anticipates, or should reasonably anticipate, that if the payment is made during
such year the deduction of such payment will not be barred by application of
Section 162(m) of the Code. Any amounts for which payment is delayed
pursuant to this Section 11 shall be credited to the then current Vectren
Corporation Nonqualified Deferred Compensation Plan. The delayed
amounts (and any amounts credited thereon) shall be distributed to the Executive
(or his or her beneficiary in the event of the Executive’s death) at the
earliest date the Company reasonably anticipates that the deduction of the
payment of the amount will not be limited or eliminated by application of
Section 162(m) of the Code. This Section 11 shall be applied and
interpreted consistent with Treas. Reg. Section 1/409A-2(b)(7)(i).”
6. The
following new Section 12 is hereby added to the Original Agreement to read in
its entirety as follows:
“12. Provisions after a Change in
Control. The following provisions shall apply after the
occurrence of a Change in Control:
(a) Six Month
Delay. Notwithstanding any provision to the contrary in this
Agreement, payments or distributions to the Executive, if the Executive is at
the time of termination of employment a “Specified Employee” (as such term is
defined in the Vectren Corporation Nonqualified Deferred Compensation Plan
effective January 1, 2005, as amended), shall not be made or commence until the
earlier of the date of the Executive’s death or the first day after expiration
of the six-month period immediately following the Date of Termination of the
Executive and all payments that would have been made during such period shall be
accumulated and paid on the first day after the earlier of death or expiration
of such period; provided, however, that the six
(6) month delay required under this Section 12(a) shall not apply to (i) the
portion of any payment that is not a deferral of compensation as set forth in
Treas. Reg. § 1.409A-1(b)(9)(v), or (ii) the portion of any payment resulting
from the Executives “involuntary separation from service” (as defined in Treas.
Reg. § 1.409A-1(n) and including a “separation from service for good reason,” as
defined in Treas. Reg. § 1.409A-1(n)(2)) that (A) is payable no later than the
last day of the second year following the year in which the separation from
service occurs, and (B) does not exceed two times the lesser of (1) the
Executive’s annualized compensation for the year prior to the year in which the
separation from services occurs or (2) the dollar limit described in Section
401(a)(17) of the Code.
(b) Separation from
Service. Termination of employment of the Executive under this
Agreement shall mean “Separation from Service” (as such term is defined in the
Vectren Corporation Nonqualified Deferred Compensation Plan effective January 1,
2005, as amended).
(c) Distributions upon Income
Inclusion under Section 409A of the Code. Upon the inclusion
of any amount into the Executive’s income as a result of the failure of this
Agreement to comply with the requirements of Section 409A of the Code a
distribution not to exceed the amount that shall be included in income shall be
made as soon as is administratively practicable following the discovery of the
failure of the Agreement to comply with Section 409A of the Code and the
regulations promulgated thereunder.”
7. This
Amendment is to be effective on the Effective Date. Except as
specifically amended herein, all other terms and conditions contained in the
Original Agreement shall remain unchanged and shall continue in full force and
effect.
8. This
Amendment may be executed in one or more counterparts, each of which when taken
together shall be deemed one original Amendment.
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____________________________________________
_______________________,
the Executive
Vectren
Corporation
By: /s/Xxxx X.
Xxxxxxxxx
Xxxx X. Xxxxxxxxx, Chair of the
Compensation
and Benefits Committee of Board of
Directors