Exhibit 10.1
EMPLOYMENT AGREEMENT
XXXXX X. XXXXX
This Agreement, dated as of January 1, 1997, is between
Indianapolis Power & Light Company, an Indiana corporation having its
principal executive offices at Xxx Xxxxxxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxx
00000 (the "Company"), and XXXXX X. XXXXX, an Indiana resident whose
mailing address is 0000 Xxxxxxx Xxxx Xxxxx, Xxxxxxxxxxxx, XX 00000 (the
"Executive").
R E C I T A L S
The following facts are true:
A. The Executive has for many years served the Company as a key
executive officer, and is expected to continue to make a major
contribution to the profitability, growth and financial strength of the
Company.
B. The Company considers the continued services of the Executive
to be in the best interests of the Company and its shareholders, and
desires to assure itself of the availability of such continued services
in the future.
C. The Executive is willing to remain in the employ of the
Company upon the terms and subject to the conditions hereinafter
provided.
A G R E E M E N T
In consideration of the premises and the mutual covenants and
agreements hereinafter set forth, the Company and the Executive agree as
follows:
1. Employment. The Company hereby employs the Executive for the
Term of Employment (as defined in Paragraph 6 hereof) as President and
Chief Operating Officer or in such other executive capacity, for the
Company or a major affiliate thereof, as may be determined by the Board
of Directors of the Company (the "Board"), with such duties as may be
reasonably assigned to him by the By-Laws of the Company and by the
Board. During the Term of Employment, the Executive shall devote his
best efforts and ability, skill and attention to the business of the
Company and to the promotion of its interests during normal working hours
(with the exception of absences because of vacations or illness). The
Executive's office shall continue to be located in the Indianapolis,
Indiana metropolitan area, unless he shall consent to a relocation.
2. Base Salary. During the Term of Employment, the Executive
shall receive a minimum base salary of $452,500.00 per year, payable in
bi-weekly intervals, or such larger amount as the Board shall in its
discretion determine from time to time.
3. Fringe Benefits. During the Term of Employment, the Company
shall provide to the Executive such fringe benefits as are generally
provided to its key executive officers, including without limitation,
incentive compensation and bonus arrangements, retirement, profit-sharing
and stock bonus plans (whether qualified or nonqualified), and life,
health and accident, director and officer liability and long term
disability insurance.
4. Reimbursement of Expenses. The Company shall reimburse the
Executive for all of his reasonable expenses incurred in the performance
of his duties hereunder, in accordance with the Company's generally
applicable expense reimbursement policy as in effect from time to time
and upon compliance with all reasonable accounting and reporting
requirements as set forth in such policy.
5. Noncompetition. During the Term of Employment and thereafter
so long as the Executive is receiving payments pursuant to Paragraph 7
hereof, the Executive shall not, without the consent of the Company,
engage in, be employed by, be a director of or own an equity interest in
any business or activity competing with or of a nature similar to the
business of the Company within the Company's service territory as
constituted from time to time.
6. Term of Employment. The "Term of Employment" shall commence
on the date of this Agreement and shall continue until December 31, 1999
unless earlier terminated as follows. The Term of Employment shall
terminate early upon the first to occur of (a) the death of the
Executive, (b) the Total Disability (as hereinafter defined) of the
Executive, (c) the voluntary retirement of the Executive upon reaching
retirement age as provided in the Employees' Retirement Plan of
Indianapolis Power & Light Company as now in effect or hereinafter
amended (the "Retirement Plan"), (d) termination of employment by the
Company for Cause (as hereinafter defined), (e) the resignation of the
Executive for Good Reason (as hereinafter defined), (f) termination of
employment by the Company without Cause on six (6) months notice, or (g)
termination of employment by the Executive on six (6) months notice. For
purposes of this Agreement, the term "Total Disability" shall mean a
physical or mental condition which prevents the Executive from performing
his duties for the Company; provided, however, that the Executive shall
not be deemed to have incurred a Total Disability unless he is eligible
for disability retirement under the Retirement Plan. The term "Cause"
shall mean fraud, dishonesty, theft of corporate assets or other gross
misconduct by the Executive. The term "Good Reason" shall mean, without
the Executive's written consent, a demotion in the Executive's status,
position or responsibilities; the assignment to the Executive of any
duties which are inconsistent with such status, position or
responsibilities; or the relocation of the principal executive offices of
the Company to a location outside the Indianapolis, Indiana metropolitan
area.
7. Payments on Early Termination. In the event the Term of
Employment is terminated early by reason of Paragraphs 6(e) (resignation
for Good Reason) or 6(f) (termination by the Company without Cause), the
Company shall continue to pay to the Executive the base salary which
would have been payable pursuant to Paragraph 2 above for what would have
been the remainder of the Term of Employment had the event specified in
Paragraphs 6(e) or 6(f) not occurred. The Company shall also continue
for the same period to provide life, health and accident and long term
disability insurance for the Executive and his dependents to the extent
provided before such termination and, if the Term of Employment would
have ended with the retirement of the Executive but for such early
termination, the Company shall provide such insurance thereafter to the
extent generally provided by the Company to retired employees.
Notwithstanding the foregoing:
(a) In the event the Executive receives severance benefits
from the Company as a result of such termination pursuant to any
other plan or agreement in or to which the Executive is a
participant or party, other than the Retirement Plan or the
Indianapolis Power & Light Company Unfunded Supplemental Retirement
Plan for a Select Group of Management Employees or any similar or
successor plan, such benefits shall be applied on a first dollar
basis against the payments owing to the Executive under this
Paragraph 7; and
(b) In the event that Deloitte & Touche determines that any
payment by the Company to or for the benefit of the Executive
pursuant to this Paragraph 7 would be nondeductible by the Company
for federal income tax purposes because of Section 280G of the
Internal Revenue Code of 1954, as amended from time to time (the
"Code"), then the amount payable to or for the benefit of the
Executive pursuant to this Paragraph 7 shall be reduced (but not
below zero) to the maximum amount payable without causing the
payment to be nondeductible by the Company because of Section 280G
of the Code. Such determination by Deloitte & Touche shall be
conclusive and binding upon the parties.
8. Miscellaneous.
(a) This Agreement shall inure to the benefit of and be
binding upon the parties hereto and their respective executors,
administrators, heirs, personal representatives, successors, and
assigns, but neither this Agreement nor any right hereunder may be
assigned or transferred by either party hereto, any beneficiary, or
any other person, nor be subject to alienation, anticipation, sale,
pledge, encumbrance, execution, levy, or other legal process of any
kind against the Executive, his beneficiary or any other person.
Notwithstanding the foregoing, the Company will assign this
Agreement to any corporation or other business entity succeeding to
substantially all of the business and assets of the Company by
merger, consolidation, sale of assets, or otherwise and shall
obtain the assumption of this Agreement by such successor.
(b) This Agreement contains the entire agreement between
the parties with respect to the subject matter hereof. All
representations, promises, and prior or contemporaneous
understandings among the parties with respect to the subject matter
hereof are merged into and expressed in this Agreement, and any and
all prior agreements between the parties with respect to the
subject matter hereof are hereby cancelled. Notwithstanding the
foregoing portion of this Paragraph 8(b), this Agreement is in
addition to, and shall not operate to cancel or reduce any benefits
that may become due to Executive under the Termination Benefits
Agreement as amended and restated effective January 1, 1997, by and
among IPALCO Enterprises, Inc., the Company, and Executive.
(c) This Agreement shall not be amended, modified, or
supplemented without the written agreement of the parties at the
time of such amendment, modification, or supplement.
(d) This Agreement shall be governed by and subject to the
laws of the State of Indiana.
(e) The invalidity or unenforceability of any particular
provision of this particular Agreement shall not affect the other
provisions, and this Agreement shall be construed in all respects
as if such invalid or unenforceable provision had not been
contained herein.
(f) The captions in this Agreement are for convenience and
identification purposes only, are not an integral part of this
Agreement, and are not to be considered in the interpretation of
any part hereof.
(g) Except as specifically set forth in this Agreement, all
notices and other communications hereunder shall be in writing and
shall be deemed to have been duly given if delivered in person or
sent by registered or certified mail, postage prepaid, addressed as
set forth above, or to such other address as shall be furnished in
writing by any party to the others.
(h) Except as otherwise specifically provided in this
Agreement, no waiver by either party hereto of any breach by the
other party hereto of any condition or provision of this Agreement
to be performed by such other party shall be deemed to be a valid
waiver unless such waiver is in writing or, even if in writing,
shall be deemed to be a waiver of a subsequent breach of such
condition or provision or a waiver of a similar or dissimilar
provision or condition at the same or at any prior or subsequent
time.
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the day and year first above written.
INDIANAPOLIS POWER & LIGHT COMPANY
By: /s/ Xxxx X. Xxxxxxx
Chairman of the Board and
Chief Executive Officer
Attest: /s/ Xxxxx X. Xxxxxx
Secretary
/s/ Xxxxx X. Xxxxx
Xxxxx X. Xxxxx
