EXHIBIT 10.23
FORM OF
TERMINATION BENEFITS AGREEMENT
AS AMENDED AND RESTATED, EFFECTIVE JANUARY 1, 1993
[See Schedule A attached hereto for a list of parties to,
and dates of, the Termination Benefits Agreements]
This Agreement, dated as of January 1, 1993, by and
among IPALCO ENTERPRISES, INC., an Indiana corporation
having its principal executive offices at 00 Xxxxxxxx
Xxxxxx, Xxxxxxxxxxxx, Xxxxxxx 00000 ("IPALCO"),
INDIANAPOLIS POWER & LIGHT COMPANY, an Indiana
corporation having its principal executive offices at 00
Xxxxxxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxx 00000 ("IPL")
(both IPALCO and IPL being collectively referred to
herein as the "Company"), and , an Indiana resident
whose mailing address is (the "Executive").
R E C I T A L S
The following facts are true:
A. The Executive is serving 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 on
an objective and impartial basis and without distraction
or conflict of interest in the event of an attempt to
obtain control of the Company.
C. The Executive is willing to remain in the employ
of the Company upon the understanding that the Company
will provide him with income security upon the terms and
subject to the conditions contained herein if his
employment is terminated by the Company without cause or
if he voluntarily terminates his employment for good
reason.
D. If the Company and Executive entered into one or
more Termination Benefits Agreements prior to this
Agreement (the "Prior Termination Benefits Agreements"),
this Agreement is intended to supersede and replace the
Prior Termination Benefits Agreements.
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. Undertaking. The Company agrees to pay to the
Executive the termination benefits specified in paragraph
2 hereof if (a) control of IPALCO is acquired (as defined
in paragraph 3(a) hereof) during the term of this
Agreement (as described in paragraph 5 hereof) and (b)
within three (3) years after the acquisition of control
occurs (i) the Company terminates the employment of the
Executive for any reason other than Cause (as defined in
paragraph 3(b) hereof), death, the Executive's attainment
of age sixty-five (65) or total and permanent disability,
or (ii) the Executive voluntarily terminates his
employment for Good Reason (as defined in paragraph 3(c)
hereof).
2. Termination Benefits. If the Executive is
entitled to termination benefits pursuant to paragraph 1
hereof, the Company agrees to pay to the Executive as
termination benefits in a lump-sum payment within five
(5) calendar days of the termination of the Executive's
employment an amount to be computed by multiplying (i)
the Executive's average annual compensation (as defined
in Section 280G of the Internal Revenue Code of 1986, as
amended (the "Code")) payable by the Company which was
includable in the gross income of the Executive for the
most recent five (5) calendar years ending coincident
with or immediately before the date on which control of
the Company is acquired (or such portion of such period
during which the Executive was an employee of the
Company), by (ii) two hundred ninety-nine and ninety-nine
one hundredths percent (299.99%). For purposes of this
Agreement, employment and compensation paid by any direct
or indirect subsidiary of the Company will be deemed to
be employment and compensation paid by the Company.
3. Definitions.
(a) As used in this Agreement, the
"acquisition of control" means:
(i) The acquisition by any individual,
entity or group (within the meaning of
Section 13(d)(3) or 14(d)(2) of the
Securities Exchange Act of 1934, as amended
(the "Exchange Act")) (a "Person") of
beneficial ownership (within the meaning of
Rule 13d-3 promulgated under the Exchange
Act) of twenty percent (20%) or more of
either (A) the then outstanding shares of
common stock of IPALCO (the "Outstanding
IPALCO Common Stock") or (B) the combined
voting power of the then outstanding voting
securities of IPALCO entitled to vote
generally in the election of directors (the
"Outstanding IPALCO Voting Securities");
provided, however, that the following
acquisitions shall not constitute an
acquisition of control: (A) any acquisition
directly from IPALCO (excluding an
acquisition by virtue of the exercise of a
conversion privilege), (B) any acquisition
by IPALCO, (C) any acquisition by any
employee benefit plan (or related trust)
sponsored or maintained by IPALCO, IPL or
any corporation controlled by IPALCO or (D)
any acquisition by any corporation pursuant
to a reorganization, merger or
consolidation, if, following such
reorganization, merger or consolidation, the
conditions described in clauses (A), (B) and
(C) of subsection (iii) of this paragraph
3(a) are satisfied;
(ii) Individuals who, as of the date
hereof, constitute the Board of Directors of
IPALCO (the "Incumbent Board") cease for any
reason to constitute at least a majority of
the Board of Directors of IPALCO (the
"Board"); provided, however, that any
individual becoming a director subsequent to
the date hereof whose election, or
nomination for election by IPALCO's
shareholders, was approved by a vote of at
least a majority of the directors then
comprising the Incumbent Board shall be
considered as though such individual were a
member of the Incumbent Board, but
excluding, for this purpose, any such
individual whose initial assumption of
office occurs as a result of either an
actual or threatened election contest (as
such terms are used in Rule 14a-11 of
Regulation 14A promulgated under the
Exchange Act) or other actual or threatened
solicitation of proxies or consents by or on
behalf of a Person other than the Board; or
(iii) Approval by the shareholders of
IPALCO of a reorganization, merger or
consolidation, in each case, unless,
following such reorganization, merger or
consolidation, (A) more than sixty percent
(60%) of, respectively, the then outstanding
shares of common stock of the corporation
resulting from such reorganization, merger
or consolidation and the combined voting
power of the then outstanding voting
securities of such corporation entitled to
vote generally in the election of directors
is then beneficially owned, directly or
indirectly, by all or substantially all of
the individuals and entities who were the
beneficial owners, respectively, of the
Outstanding IPALCO Common Stock and
Outstanding IPALCO Voting Securities
immediately prior to such reorganization,
merger or consolidation in substantially the
same proportions as their ownership,
immediately prior to such reorganization,
merger or consolidation, of the Outstanding
IPALCO Stock and Outstanding IPALCO Voting
Securities, as the case may be, (B) no
Person (excluding IPALCO, any employee
benefit plan or related trust of IPALCO, IPL
or such corporation resulting from such
reorganization, merger or consolidation and
any Person beneficially owning, immediately
prior to such reorganization, merger or
consolidation and any Person beneficially
owning, immediately prior to such
reorganization, merger or consolidation,
directly or indirectly, twenty percent (20%)
or more of the Outstanding IPALCO Common
Stock or Outstanding Voting Securities, as
the case may be) beneficially owns, directly
or indirectly, twenty percent (20%) or more
of, respectively, the then outstanding
shares of common stock of the corporation
resulting from such reorganization, merger
or consolidation or the combined voting
power of the then outstanding voting
securities of such corporation entitled to
vote generally in the election of directors
and (C) at least a majority of the members
of the board of directors of the corporation
resulting from such reorganization, merger
or consolidation were members of the
Incumbent Board at the time of the execution
of the initial agreement providing for such
reorganization, merger or consolidation;
(iv) Approval by the shareholders of
IPALCO of (A) a complete liquidation or
dissolution of IPALCO or (B) the sale or
other disposition of all or substantially
all of the assets of IPALCO, other than to a
corporation, with respect to which following
such sale or other disposition (1) more than
sixty percent (60%) of, respectively, the
then outstanding shares of common stock of
such corporation and the combined voting
power of the then outstanding voting
securities of such corporation entitled to
vote generally in the election of directors
is then beneficially owned, directly or
indirectly, by all or substantially all of
the individuals and entities who were the
beneficial owners, respectively, of the
Outstanding IPALCO Common Stock and
Outstanding IPALCO Voting Securities
immediately prior to such sale or other
disposition in substantially the same
proportion as their ownership, immediately
prior to such sale or other disposition, of
the Outstanding IPALCO Common Stock and
Outstanding IPALCO Voting Securities, as the
case may be, (2) no Person (excluding IPALCO
and any employee benefit plan or related
trust of IPALCO, IPL or such corporation and
any Person beneficially owning, immediately
prior to such sale or other disposition,
directly or indirectly, twenty percent (20%)
or more of the Outstanding IPALCO Common
Stock or Outstanding IPALCO Voting
Securities, as the case may be) beneficially
owns, directly or indirectly, twenty percent
(20%) or more of, respectively, the then
outstanding shares of common stock of such
corporation and the combined voting power of
the then outstanding voting securities of
such corporation entitled to vote generally
in the election of directors and (3) at
least a majority of the members of the board
of directors of such corporation were
members of the Incumbent Board at the time
of the execution of the initial agreement or
action of the Board providing for such sale
or other disposition of assets of IPALCO; or
(v) The closing, as defined in the
documents relating to, or as evidenced by a
certificate of any state or federal
governmental authority in connection with, a
transaction approval of which by the
shareholders of IPALCO would constitute an
"acquisition of control" under subsection
(iii) or (iv) of this section 3(a) of this
Agreement.
Notwithstanding anything contained in this
Agreement to the contrary, if the Executive's
employment is terminated before an "acquisition
of control" as defined in this section 3(a) and
the Executive reasonably demonstrates that such
termination (i) was at the request of a third
party who has indicated an intention or taken
steps reasonably calculated to effect an
"acquisition of control" and who effectuates an
"acquisition of control" (a "Third Party") or
(ii) otherwise occurred in connection with, or in
anticipation of, an "acquisition of control"
which actually occurs, then for all purposes of
this Agreement, the date of an "acquisition of
control" with respect to the Executive shall mean
the date immediately prior to the date of such
termination of the Executive's employment.
(b) As used in this Agreement, the term
"Cause" means fraud, dishonesty, theft of
corporate assets, or other gross misconduct by
the Executive. Notwithstanding the foregoing,
the Executive shall not be deemed to have been
terminated for cause unless and until there shall
have been delivered to him a copy of a resolution
duly adopted by the affirmative vote of not less
than a majority of the entire membership of the
Board at a meeting of the Board called and held
for the purpose (after reasonable notice to him
and an opportunity for him, together with his
counsel, to be heard before the Board), finding
that in the good faith opinion of the Board the
Executive was guilty of conduct set forth above
in the first sentence of the subsection and
specifying the particulars thereof in detail.
(c) As used in this Agreement, the term
"Good Reason" means, without the Executive's
written consent, (i) a demotion in the
Executive's status, position or responsibilities
which, in his reasonable judgment, does not
represent a promotion from his status, position
or responsibilities as in effect immediately
prior to the change in control; (ii) the
assignment to the Executive of any duties or
responsibilities which, in his reasonable
judgment, are inconsistent with such status,
position or responsibilities; or any removal of
the Executive from or failure to reappoint or
reelect him to any of such positions, except in
connection with the termination of his employment
for total and permanent disability, death or
Cause or by him other than for Good Reason; (iii)
a reduction by the Company in the Executive's
base salary as in effect on the date hereof or as
the same may be increased from time to time
during the term of this Agreement or the
Company's failure to increase (within twelve (12)
months of the Executive's last increase in base
salary) the Executive's base salary after a
change in control in an amount which at least
equals, on a percentage basis, the average
percentage increase in base salary for all
executive and senior officers of the Company
effected in the preceding twelve (12) months;
(iv) the relocation of the principal executive
offices of IPALCO or IPL, whichever entity on
behalf of which the Executive performs a
principal function of that entity as part of his
employment services, to a location outside the
Indianapolis, Indiana metropolitan area or the
Company's requiring him to be based at any place
other than the location at which he performed his
duties prior to a change in control, except for
required travel on the Company's business to an
extent substantially consistent with his business
travel obligations at the time of a change in
control; (v) the failure by the Company to
continue in effect any incentive, bonus or other
compensation plan in which the Executive
participates, including but not limited to the
Company's stock option and restricted stock
plans, unless an equitable arrangement (embodied
in an ongoing substitute or alternative plan),
with which he has consented, has been made with
respect to such plan in connection with the
change in control, or the failure by the Company
to continue his participation therein, or any
action by the Company which would directly or
indirectly materially reduce his participation
therein; (vi) the failure by the Company to
continue to provide the Executive with benefits
substantially similar to those enjoyed by him or
to which he was entitled under any of the
Company's pension, profit sharing, life
insurance, medical, dental, health and accident,
or disability plans in which he was participating
at the time of a change in control, the taking of
any action by the Company which would directly or
indirectly materially reduce any of such benefits
or deprive him of any material fringe benefit
enjoyed by him or to which he was entitled at the
time of the change in control, or the failure by
the Company to provide him with the number of
paid vacation and sick leave days to which he is
entitled on the basis of years of service with
the Company in accordance with the Company's
normal vacation policy in effect on the date
hereof; (vii) the failure of the Company to
obtain a satisfactory agreement from any
successor or assign of the Company to assume and
agree to perform this Agreement; (viii) any
purported termination of the Executive's
employment which is not effected pursuant to a
Notice of Termination satisfying the requirements
of paragraph 4(c) hereof (and, if applicable,
paragraph 3(b) hereof); and for purposes of this
Agreement, no such purported termination shall be
effective; or (ix) any request by the Company
that the Executive participate in an unlawful act
or take any action constituting a breach of the
Executive's professional standard of conduct.
Notwithstanding anything in this paragraph
3(c) to the contrary, the Executive's right to
terminate his employment pursuant to this
paragraph 3(c) shall not be affected by his
incapacity due to physical or mental illness.
4. Additional Provisions.
(a) Enforcement of Agreement. The Company
is aware that upon the occurrence of a change in
control the Board of Directors or a shareholder
of the Company may then cause or attempt to cause
the Company to refuse to comply with its
obligations under this Agreement, or may cause or
attempt to cause the Company to institute, or may
institute, litigation seeking to have this
Agreement declared unenforceable, or may take or
attempt to take other action to deny the
Executive the benefits intended under this
Agreement. In these circumstances, the purpose
of this Agreement could be frustrated. It is the
intent of the Company that the Executive not be
required to incur the expenses associated with
the enforcement of his rights under this
Agreement by litigation or other legal action,
nor be bound to negotiate any settlement of his
rights hereunder, because the cost and expense of
such legal action or settlement would
substantially detract from the benefits intended
to be extended to the Executive hereunder.
Accordingly, if following a change in control it
should appear to the Executive that the Company
has failed to comply with any of its obligations
under this Agreement or in the event that the
Company or any other person takes any action to
declare this Agreement void or unenforceable, or
institutes any litigation or other legal action
designed to deny, diminish or to recover from the
Executive the benefits entitled to be provided to
the Executive hereunder and that the Executive
has complied with all of his obligations under
this Agreement, the Company irrevocably
authorizes the Executive from time to time to
retain counsel of his choice, at the expense of
the Company as provided in this paragraph 4(a),
to represent the Executive in connection with the
initiation or defense of any litigation or other
legal action, whether such action is by or
against the Company or any director, officer,
shareholder, or other person affiliated with the
Company, in any jurisdiction. Notwithstanding
any existing or prior attorney-client
relationship between the Company and such
counsel, the Company irrevocably consents to the
Executive entering into an attorney-client
relationship with such counsel, and in that
connection the Company and the Executive agree
that a confidential relationship shall exist
between the Executive and such counsel. The
reasonable fees and expenses of counsel selected
from time to time by the Executive as hereinabove
provided shall be paid or reimbursed to the
Executive by the Company on a regular, periodic
basis upon presentation by the Executive of a
statement or statements prepared by such counsel
in accordance with its customary practices, up to
a maximum aggregate amount of $500,000. Any
legal expenses incurred by the Company by reason
of any dispute between the parties as to
enforceability of or the terms contained in this
Agreement, notwithstanding the outcome of any
such dispute, shall be the sole responsibility of
the Company, and the Company shall not take any
action to seek reimbursement from the Executive
for such expenses.
(b) Severance Pay; No Duty to Mitigate.
The amounts payable to the Executive under this
Agreement shall not be treated as damages but as
severance compensation to which the Executive is
entitled by reason of termination of his
employment in the circumstances contemplated by
this Agreement. The Company shall not be
entitled to set off against the amounts payable
to the Executive any amounts earned by the
Executive in other employment after termination
of his employment with the Company, or any
amounts which might have been earned by the
Executive in other employment had he sought such
other employment.
(c) Notice of Termination. Any purported
termination by the Company or by the Executive
shall be communicated by written Notice of
Termination to the other party hereto in
accordance with paragraph 4(k) hereof. For
purposes of this Agreement, a "Notice of
Termination" shall mean a notice which shall
indicate the specific termination provision in
this Agreement relied upon and shall set forth in
reasonable detail the facts and circumstances
claimed to provide a basis for termination of his
employment under the provision so indicated. For
purposes of this Agreement, no such purported
termination shall be effective without such
Notice of Termination.
(d) Internal Revenue Code. Anything in
this Agreement to the contrary notwithstanding,
in the event that Deloitte & Touche determines
that any payment by the Company to or for the
benefit of the Executive pursuant to the terms of
this Agreement would be nondeductible by the
Company for federal income tax purposes because
of Section 280G of the Code, then the amount
payable to or for the benefit of the Executive
pursuant to this Agreement 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.
(e) Assignment. 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.
(f) Entire Agreement. 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,
including any Prior Termination Benefits
Agreements, 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.
(g) Amendment. 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.
(h) Governing Law. This Agreement shall be
governed by and subject to the laws of the State
of Indiana.
(i) Severability. The invalidity or
unenforceability of any particular provision of
this 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.
(j) Captions. 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.
(k) Notices. Except as otherwise
specifically provided 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.
(l) Waivers. 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.
(m) Gender. The use of the masculine
gender throughout this Agreement is solely for
convenience; thus, in cases where the Executive
is female, the feminine gender shall be deemed to
be used in place of the masculine gender.
5. Term of this Agreement. This Agreement shall
remain in effect until January 1, 1998 or until the
expiration of any extension thereof. The term of this
Agreement shall be automatically extended for one (1)
year periods without further action of the parties as of
January 1, 1994 and each succeeding January 1 thereafter,
unless IPALCO shall have served written notice to the
Executive prior to January 1, 1994 or prior to January 1
of each succeeding year, as the case may be, of its
intention that the Agreement shall terminate at the end
of the five (5) year period that begins with the
January 1 following the date of such written notice.
IN WITNESS WHEREOF, the parties have executed this
Agreement as of the day and year first above written.
IPALCO ENTERPRISES, INC.
By:
Attest:
INDIANAPOLIS POWER & LIGHT COMPANY
By:
Attest:
SCHEDULE A
TO
TERMINATION BENEFITS AGREEMENT
As Amended and Restated, Effective January 1, 1993
By and among IPALCO Enterprises, Inc., Mid-America
Capital Resources, Inc. and the following individuals:
Xxxxxx X. Xxxxxx
Xxxxxx X. Short
Xxxxx X. Xxxxxx (effective January 1, 1995)
Xxxxxxx X. Xxxxx
Xxxxx X. Xxxxxx (effective December 25, 1995)
By and among IPALCO Enterprises, Inc., Indianapolis Power
& Light Company and the following individuals:
Xxxxxxx X. Xxxxx (effective July 1, 1995)
Xxxx X. Xxxxxxx, Xx.
Xxxx X. Xxxxx
Xxx Xxxxxxx
Xxxxx X. Xxxxxx (effective May 1, 1995)
Xxxx X. Xxxxxxx
Xxxxx X. Xxxxx
Xxxxxx X. Xxxxxx
Xxxxx X. XxXxxxxx (effective January 1, 1996)
Xxxx X. Xxxxxxxxxx (effective January 1, 1997)
Xxxxxx X. Xxxxx
Xxxxxxx X. Xxxxxxxx
Xxxxxx X. Xxxxxxxx
Xxxxxx X. Slash
Xxxxx X. Xxxxxx (effective as of October 1, 1994)
Xxxxxx X. Xxxxx
Xxxx X. Xxxxxx
By and between IPALCO Enterprises, Inc. and the following
individuals:
N. Xxxxxx Xxxxxx
Xxxxx Xxxxxxx (effective May 1, 1995)
Xxxxxxx X. Xxxxxxxx (effective May 1, 1996)
Xxxxxx X. Xxxxxxx (effective May 1, 1996)
By and among IPALCO Enterprises, Inc. and Store Heat and
Produce Energy, Inc. and the following individual:
Xxxxxxx X. Xxxxxx (effective as of February 6, 1995)
