Retirement Agreement
Exhibit
99.2
This Retirement
Agreement (this “Agreement”) is entered into
between Xxxx X.
Xxxxxxxxxx (“Executive”) and Vectren Corporation
(“Vectren”).
Recitals
A. Executive
has made the decision to retire from Vectren effective May 31,
2010.
B. Vectren
has agreed to accept Executive’s retirement from Vectren.
Now Therefore, in
recognition of Executive’s service with Vectren, and in consideration of the
mutual covenants, promises, and obligations contained in this Agreement, and for
other good and valuable consideration, the receipt and sufficiency of which is
mutually acknowledged, the parties agree as follows:
Agreement
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1.
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Definitions.
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(a)
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Throughout
this Agreement, the term the “Company” shall encompass
the following: (i) Vectren, as well as any division thereof, parent,
subsidiary, affiliated entity, or related entity; and (ii) any current or
former officer, director, trustee, agent, employee, shareholder,
representative, insurer, or employee benefit or welfare program or plan
(including administrators, trustees, fiduciaries, and insurers of such
program or plan) of an entity referenced in or encompassed by Subparagraph
1(a)(i);
provided however, "Company" shall not include any pension plan intended to
constitute a tax-qualified retirement plan under Section 401(a) of the
Internal Revenue Code of 1986, as amended ("Code").
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(b)
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Throughout
this Agreement, the term “Retirement Date” shall
mean the close of business on May 31, 2010, or such earlier date as
Executive’s employment terminates pursuant to Paragraph 2.
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2.
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Employment. Vectren
agrees that Executive will continue in the employ of Vectren until the
Retirement Date, on which date and time Executive’s employment will
terminate and Executive will suffer a “Separation from Service” under
Section 409A of the Code. Executive agrees that Executive will not
terminate Executive’s employment with Vectren until the Retirement Date.
Notwithstanding the foregoing, Executive’s employment shall cease upon
Executive’s death prior to the Retirement Date.
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3.
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Retirement
Payments and Other Consideration. This
Paragraph 3 contains a statement of all the
benefits to be provided by the Company to Executive in connection with
Executive’s retirement. Certain benefits are required to be provided to
Executive pursuant to the terms of current plans or agreements governing
such benefits and are simply restated in this Paragraph 3 for convenience of Executive and Vectren.
Other benefits are not required to be provided to Executive pursuant to
the terms of current plans or agreements and are being provided to
Executive as part of Executive’s retirement package and in consideration
of the terms and conditions and releases contained in this Agreement and
then only if Executive signs this Agreement and this Agreement is not
revoked by Executive and if Executive delivers, fully executed by
Executive and dated the Retirement Date, the Reaffirmation of Retirement
Agreement attached as Exhibit
A.
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(a)
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On
the first payroll date after the Retirement Date, Vectren agrees to pay
Executive unpaid salary through the Retirement Date plus accrued vacation
through the Retirement Date.
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(b)
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In
consideration of the provision of services as a non-employee Chairman of
the Board of Directors of Vectren Corporation (the “Board”), beginning
immediately after the Retirement Date, Vectren agrees to pay Executive
$150,000 per year (the “Chairman Payment”),
which Chairman Payment shall be paid in monthly installments of $12,500 on
the last day of each month during which Executive serves as non-employee
Chairman of the Board. The Chairman Payment shall be in addition to any
other payment payable to members of the Board in consideration for service
on the Board and committees thereof. During the period in which
Executive serves as non-employee Chairman of the Board, Vectren shall
provide Executive with an office and office support appropriate to such
position.
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(c)
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Executive
is a participant in the Vectren Corporation Unfunded Supplemental
Retirement Plan for a Select Group of Management Employees (as amended and
restated January 1, 2005) (the “SERP”) and in the
Vectren Corporation Nonqualified Defined Benefit Restoration Plan (as
amended and restated January 1, 2005) (the “Restoration
Plan”).
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(i)
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Vectren
and Executive agree that Executive’s “Termination of Employment,” in
accordance with the terms of the SERP and the Restoration Plan, shall
occur as of the Retirement Date.
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(ii)
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Pursuant
to the terms of the SERP, Executive has elected to receive the actuarial
equivalent of Executive’s monthly benefits calculated as of the date of
termination of employment in a lump sum determined using the same
actuarial assumptions set forth in the Vectren Corporation Combined
Non-Bargaining Plan as currently in effect. Executive acknowledges that
any change to that election which was made within 12 months of the
Retirement Date is not effective. Pursuant to the terms of the SERP, since
Executive is a “Specified Employee,” such lump sum payment shall not be
made to Executive until the earlier of the date of Executive’s death or
the first day after expiration of the six-month period immediately
following the Retirement Date, and all payments that would have been made
during such period shall be accumulated (together with earnings from the
day after the Retirement Date until the payment date at the rate of seven
and one-half percent (7-½%) per year, compounded annually) and paid on the
first day after the earlier of death or expiration of such period (i.e., December 1,
2010).
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(iii)
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Notwithstanding
anything to the contrary contained in the SERP and notwithstanding the
fact that Executive will not be age 65 on or before the Retirement Date,
Vectren agrees that Executive shall be treated for purposes of calculating
his SERP benefit as if Executive’s termination of employment occurred on
or after attainment of “Retirement Age” (as defined in the SERP). As a
result, Executive's benefit under the SERP shall be determined pursuant to
Section 3.02 (rather than 3.03) of the SERP; provided, however, for
purposes of determining the offsets under Sections 3.02(1) and (2),
Executive's benefits under the Company Pension Plan and the Company
Restoration Plan and Executive's Company Savings Plan and Non-Qualified
Savings Plan Monthly Benefit Equivalent shall be calculated as if such
benefits had commenced as of June 1, 2010, rather than age
65. Executive’s “Average Monthly Earnings” for purposes of the
SERP shall be computed using the 60 consecutive calendar month period
ending on the Retirement Date.
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(iv)
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Executive
is a Type A Participant and a Type B Participant under the terms of the
Restoration Plan. Pursuant to the terms of the Restoration Plan, Executive
has elected to receive his entire benefit under the Restoration Plan in a
single lump sum payment. Pursuant to the terms of the Restoration Plan,
since Executive is a “Specified Employee,” such lump sum payment shall not
be made to Executive until the earlier of the date of Executive’s death or
the first day after expiration of the six-month period immediately
following the Retirement Date, and all payments that would have been made
during such period shall be accumulated (together with earnings from the
day after Retirement Date until the payment date at the rate of seven and
one-half percent (7-½%) per year, compounded annually) and paid on the
first day after the earlier of death or expiration of such period (i.e., December 1,
2010).
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(v)
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Executive
shall not be treated as having attained age 65 as of the Retirement Date
for purposes of any plan or arrangement other than the
SERP.
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(d)
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(i)
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Pursuant
to Section VII of the At-Risk Plan, Executive has received an “Annual
Incentive Award” (as defined in the At-Risk Plan) for fiscal year 2010
(the “2010 Annual
Incentive Award”). Notwithstanding anything to the contrary
contained in the At-Risk Plan or in any other award, grant, document or
agreement evidencing the 2010 Annual Incentive Award, Vectren agrees to
pay Executive a payment equal to that amount which would have been earned
by Executive (as adjusted or forfeited based on performance) as if
Executive was employed during the entire fiscal year 2010 and as if
Executive had earned Executive’s full base salary for all of fiscal year
2010 (i.e.,
$750,000). The payment of the 2010 Annual Incentive Award shall be made to
Executive by March 15, 2011.
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(ii)
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Vectren
acknowledges that for purposes of the At-Risk Plan the Compensation and
Benefits Committee (the “Committee”) has
consented to Executive’s “Retirement” (as defined in the At-Risk Plan)
under the At-Risk Plan as of the Retirement
Date.
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(iii)
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Pursuant
to the At-Risk Plan, Executive has received a grant of “Restricted Stock”
and/or “Stock Unit Awards” (as both terms are defined in the At-Risk Plan)
covering the “Performance Period” (as defined in the At-Risk Plan) of
January 1, 2007 through December 31, 2009 and the “Restriction Period” (as
defined in the At-Risk Plan) of January 1, 2007 through December 31, 2010
(the “2007
Award”), which is specifically set forth in the award agreement
applicable to the 2007 Award. As the Committee has consented to
Executive’s Retirement under the At-Risk Plan, pursuant to the terms of
the At-Risk Plan all restrictions with respect to the 2007 Award shall be
removed as of the Retirement Date.
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(iv)
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Pursuant
to the At-Risk Plan, Executive has received grants of Restricted Stock
and/or Stock Unit Awards covering each of the following: (A) the
Performance Period of January 1, 2008 through December 31, 2010 and the
Restriction Period of January 1, 2008 through December 31, 2011 (the
“2008 Award”); (B)
the Performance Period of January 1, 2009 through December 31, 2011 and
the Restriction Period of January 1, 2009 through December 31, 2012 (the
“2009 Award”); and
(C) the Performance Period of January 1, 2010 through December 31, 2012
and the Restriction Period of January 1, 2010 through December 31, 2013
(the “2010 Award”
and, collectively, with the 2008 Award and the 2009 Award, the “Awards” and each,
individually, an “Award”), which are
specifically set forth in the award agreement applicable to the Award.
Notwithstanding anything to the contrary contained in the At-Risk Plan or
in any other award, grant, document or agreement evidencing the any Award,
Vectren agrees to pay Executive a payment with respect to each Award equal
to that amount which would have been earned by Executive (as adjusted or
forfeited based on performance) for each Award as if Executive was
employed during the entire Performance Period for the relevant Award. As
the Committee has consented to Executive’s Retirement under the At-Risk
Plan, pursuant to the terms of the At-Risk Plan all restrictions with
respect to each Award shall be removed as of the expiration of the
applicable Performance Period for such
Award.
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(v)
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Pursuant
to the At-Risk Plan, Executive has received grants of the following
non-qualified options, all of which remain outstanding and in
effect: (i) an option to purchase 230,000 shares at a per-share
option price of $22.54, granted May 1, 2001; (ii) an option to purchase
125,000 shares at a per-share option price of $23.19, granted January 1,
2003; (iii) an option to purchase 71,000 shares at a per-share option
price of $24.74, granted January 1, 2004, and (iv) an option to purchase
85,100 shares at a per-share option price of $26.63, granted January 1,
2005. As Executive's Retirement pursuant to this Agreement is a
"Retirement" for purposes of the At-Risk Plan, each of the options shall
remain exercisable until the tenth anniversary of the grant date for such
option.
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(vi)
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Pursuant
to Article X of the At-Risk Plan, upon a Change in Control (as defined in
the At-Risk Plan), the 2007 Award and all the Awards shall be immediately
vested and the 2010 Annual Incentive Award shall be considered earned and
not subject to forfeiture and if the event occurs before the end of the
performance period, the payment of the 2010 Annual Incentive Award shall
be based on target, unless the payment as determined pursuant to Paragraph
3(d)(i) produces a larger payment, in which case the amount determined
pursuant to Paragraph 3(d)(i) shall
apply.
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(e)
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Executive
participates as an employee (but not as a director) in the Vectren
Corporation Nonqualified Deferred Compensation Plan (As Amended and
Restated Effective January 1, 2001) (the “Frozen Plan”). Pursuant
to the terms of the Frozen Plan, Executive will “Retire” (as defined in
the Frozen Plan) as of the Retirement Date. As is required by the Frozen
Plan and the retirement election form timely made by Executive, Executive
shall be paid his “Account Balance” (as defined in the Frozen Plan) in a
lump sum no later than 60 days after the Retirement Date. As is required
by the Frozen Plan, Vectren shall withhold from any payment made to
Executive all federal, state and local income, employment and other taxes
required to be withheld by Vectren. A portion of Executive’s Account
Balance may be comprised of amounts deferred by the Company due to the
fact such amounts were not deductible by the Company pursuant to Section
162(m) of the Code. As such, notwithstanding the foregoing, such amounts
shall not be paid until such amounts are permitted to be paid by the
Company. As is required by the Frozen Plan, Executive's Account
Balance shall be credited/debited until the last business day preceding
the date on which his benefit under the Frozen Plan is
distributed.
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(f)
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Executive
participates as an employee (but not as a director) in the Vectren
Corporation Nonqualified Deferred Compensation Plan Effective January 1,
2005 (the “Active
Plan”). Pursuant to the terms of the Active Plan, Executive will
“Retire” (as defined in the Active Plan) as of the Retirement Date. As is
required by the Active Plan and the retirement election form timely made
by Executive, Executive shall be paid his “Account Balance” (as defined in
the Active Plan) in a lump sum. Pursuant to the terms of the Active Plan,
since Executive is a “Specified Employee” (as defined in the Active Plan),
such lump sum payment shall not be made to Executive until the earlier of
the date of Executive’s death or the first day after expiration of the
six-month period immediately following the date Executive experiences a
“Separation from Service” (as defined in the Active Plan) 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
(i.e., December
1, 2010). As is required by the Active Plan, Vectren shall withhold from
any payment made to Executive all federal, state and local income,
employment and other taxes required to be withheld by Vectren. A portion
of Executive’s Account Balance may be comprised of amounts deferred by the
Company due to the fact such amounts were not deductible by the Company
pursuant to Section 162(m) of the Code. As such, notwithstanding the
foregoing, such amounts shall not be paid until such amounts are permitted
to be paid by the Company. As is required by the Active Plan,
Executive's Account Balance shall be credited/debited until the last
business day preceding the date on which his benefit under the Frozen Plan
is distributed.
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(g)
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Executive
and Vectren agree that the Vectren Corporation Change in Control Agreement
between Executive and Vectren dated March 1, 2005, as amended, shall
terminate and be of no further force and effect as of the Retirement
Date.
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(h)
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Vectren
and Executive acknowledge that Executive, as a retiree, and Executive’s
spouse are permitted to continue, at Executive’s cost, to participate in
the Vectren medical insurance plan that is available to retirees from time
to time (the “Medical
Plan”) pursuant to the terms and conditions contained in the
Medical Plan (as modified from time to
time).
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(i)
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Except
as provided in Subparagraphs (a) and (b) above, no payment or other
consideration under this Paragraph 3 shall be
made until after the effective date of this Agreement (as determined
pursuant to this Agreement).
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The
management personnel who have reviewed this Agreement on behalf of Vectren do
not have actual knowledge that any amounts payable to Executive in accordance
with this Agreement will be subject to additional taxes under Section 409A of
the Code. Subject to the preceding sentence, Vectren makes no
representation as to the tax consequences or liability arising from said
payments including, without limitation, under Section 409A of the
Code. Moreover, the parties understand and agree that any tax
consequences and/or liability to Executive arising from the payments to
Executive shall be the sole responsibility of Executive; provided, however,
Vectren shall indemnify Executive for any tax penalties incurred by Executive
due to Vectren's incorrect reporting and withholding of taxes with respect to
such payments. Executive acknowledges and agrees that Executive will pay any and
all income tax which may be determined to be due in connection with all payments
described in this Paragraph 3.
Certain
of the payments and obligations agreed to by Vectren in this Paragraph 3 reflect consideration provided to Executive over and
above anything of value to which Executive already is entitled. The payments and
obligations agreed to by Vectren in this Paragraph 3 will be subject to all applicable taxes,
withholdings, and deductions. Vectren may deduct from any payment to Executive
any applicable withholding. Subject to the following sentence, Executive
acknowledges and agrees that no other sums or amounts are or will be due or
owing to Executive and Executive (for Executive and Executive’s agents, assigns,
heirs, executors, and administrators) following Executive's termination of
employment, and expressly waives any rights or claims to additional sums,
amounts, privileges, or benefits not expressly provided for in this Paragraph 3, whether written, oral, express or
implied. Nothing in this Paragraph 3 or the following Paragraph 4
shall waive, modify, or amend Executive's rights under any qualified retirement
plan, pursuant to any award of options outstanding on the Retirement Date, or
under the Vectren's group medical plan.
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4.
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General
Release and Waiver. In
consideration for the payments and obligations agreed to by Vectren in
this Agreement, Executive (for Executive and Executive’s agents, assigns,
heirs, executors, and administrators) hereby releases and discharges the
Company from any claim, demand, action, or cause of action, known or
unknown, which arose at any time from the beginning of time to the date
Executive executes this Agreement, and waives all claims relating to,
arising out of, or in any way connected with Executive’s employment with
the Company including, without limitation, any claim, demand, action,
cause of action, including money damages and claims for attorneys’ fees,
based on but not limited to: (a) the Age Discrimination in Employment Act
of 1967, as amended (“ADEA”), 29 U.S.C. § 621, et seq.; (b) the
Americans with Disabilities Act of 1990, 42 U.S.C. § 12101, et seq.; (c) the
Rehabilitation Act of 1973, as amended, 29 U.S.C. § 701, et seq.; (d) the
Family and Medical Leave Act of 1993, 29 U.S.C. § 2601, et seq.; (e) the
Civil Rights Act of 1866 and 1964, as amended, 42 U.S.C. § 1981; (f)
Executive Retirement Security Act, 29 U.S.C. § 1001, et seq.; (g) Title
VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000(e),
et seq.; (h) the
Fair Credit Reporting Act, 15 U.S.C. § 1681, et seq.; (i) the
Worker Adjustment and Retaining Notification Act, 29 U.S.C. § 2101, et seq.; (j) the
Indiana Civil Rights Law, Ind. Code § 22-9-1-1, et seq.; (k) the
Indiana wage payment statute, Ind. Code § 22-2-4-1, et seq.; and any
Indiana wage law; (l) any existing or potential entitlement under any
Company program or plan, including wages or other paid leave; (m) any
existing or potential agreement, contract, representation, policy,
procedure, or statement (whether any of the foregoing are express or
implied, oral or written); (n) claims arising under any other federal,
state and local fair employment practices law, disability benefits law,
and any other employee or labor relations statute, executive order, law or
ordinance, and any duty or other employment-related obligation, claims
arising from any other type of statute, executive order, law or ordinance,
claims arising from contract or public policy, as well as tort, tortious
cause of conduct, breach of contract, intentional infliction of emotional
distress, negligence, discrimination, harassment, and retaliation,
together with all claims for monetary and equitable relief, punitive and
compensatory relief and attorneys’ fees and costs; (o) the Indiana
Constitution; and/or (p) the United States
Constitution.
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Executive
understands and agrees that Executive is releasing the Company from any and all
claims by which Executive is giving up the opportunity to recover any
compensation, damages, or any other form of relief in any proceeding brought by
Executive or on Executive’s behalf. Notwithstanding the foregoing, this
Agreement is not intended to operate as a waiver of any retirement or pension
benefits that are vested, the eligibility and entitlement to which shall be
governed by the terms of the applicable plan. Nor shall this Agreement operate
to waive any rights that Executive may have with respect to outstanding stock
options or waive or bar any claim or right which -- by express or unequivocal
terms of law -- may not under any circumstances be waived or barred. Moreover,
this Agreement shall not operate to waive rights, causes of action or claims
under the ADEA if those rights, causes of action or claims arise after the date
Executive signs this Agreement. Nor shall this Agreement preclude Executive from
challenging the validity of this Agreement under the ADEA. The waiver
in this Paragraph 4 shall not waive Executive's rights to any claim arising
after he signs this Agreement and Exhibit A, including any claims based on the
Company's alleged breach of this Agreement.
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5.
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Mutual
Disclaimer. This
Agreement is entered into to provide Executive with a retirement package
and to terminate the parties’ relationship on an amicable basis and shall
not be construed as an admission of liability by either party.
Accordingly, Executive states under penalties of perjury that - at the
time Executive executes this Agreement - Executive is not aware of any
facts or incidents of wrongdoing, liability, or discrimination by the
Company from the beginning of time up to the date Executive signs the
Agreement. The parties further understand that the retirement package
creates no precedent for the Company in dealing with any future
separations.
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6.
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Covenant
Not to Xxx. Except for
those claims, causes of action or rights explicitly excluded from release
in Paragraph 4 above, Executive agrees that
Executive will never file or accept anything of value from a lawsuit
concerning any claim, issue, or matter relating to or arising out of
employment with the Company, the cessation of employment, or the
compensation or benefits payable in connection with employment or
termination of employment. Should Executive violate any aspect of this
Paragraph, Executive agrees: (a) that the lawsuit is null and void, and
must be summarily withdrawn and/or dismissed; (b) to pay all costs,
expenses, and damages incurred by the Company in responding to or as a
result of any lawsuit brought by Executive that breaches this Agreement,
including, without limitation, reasonable attorneys’ fees; (c) to pay all
costs and expenses incurred by the Company in seeking enforcement of this
Agreement, including reasonable attorneys’ fees; and (d) to return the
amounts paid pursuant to Paragraph 3 (other
than amounts payable pursuant to Subparagraph 3(b)) to which Executive
would not have been entitled absent this Agreement – save $500 – within
fourteen (14) days of written demand by Vectren. In the event this
reimbursement provision is triggered, Executive agrees that the remaining
provisions of this Agreement shall remain in full force and
effect.
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7.
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Confidentiality;
Non-Competition.
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(a)
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Confidentiality. Executive
agrees to hold in a fiduciary capacity for the benefit of Vectren all
secret or confidential information, knowledge or data relating to Vectren
or any of its affiliated companies, and their respective businesses, which
shall have been obtained by Executive during Executive’s employment by
Vectren or any of its affiliated companies and which shall not be or
become public knowledge (other than by acts by Executive or
representatives of Executive in violation of this Agreement). Indefinitely
after the Retirement Date, Executive shall not, without the prior written
consent of Vectren or as may otherwise be required by law or legal process
(provided Vectren has been given notice of and opportunity to challenge or
limit the scope of disclosure purportedly so required), communicate or
divulge any such information, knowledge or data to anyone other than
Vectren and those designated by it; provided, however, this Subparagraph
(a) shall not apply to actions taken by Executive in good faith in his
role as non-employee Chairman of the Board of Directors. In addition,
Executive shall not solicit employees to leave the employment of Vectren
and its affiliates for the period beginning on the Retirement Date and
ending on the date one (1) year after Executive ceases to serve as a
member of the Board.
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(b)
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Non-Competition. Beginning
on the Retirement Date and ending on the date one (1) year after Executive
ceases to serve as a member of the Board, Executive will not directly or
indirectly, own, manage, operate, control or participate in the ownership,
management, operation or control of, or be connected as an officer,
employee, partner, director or otherwise with, or have any financial
interest in, any business which competes, or that is planning to compete,
with the utility business of Vectren or any of its affiliates or any other
business in which Vectren or any of its affiliates are engaged immediately
prior to the Retirement Date in:
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(i)
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the
State of Indiana; and
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(ii)
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the
State of Ohio.
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The
parties expressly agree that the terms of this limited non-competition provision
under this Section are reasonable, enforceable, and necessary to protect
Vectren’s interests, and are valid and enforceable. In the unlikely event,
however, that a court of competent jurisdiction were to determine that any
portion of this limited non-competition provision is unenforceable, then the
parties agree that the remainder of the limited non-competition provision shall
remain valid and enforceable to the maximum extent possible. The foregoing shall
not prohibit Executive from owning up to one percent (1%) of the issued and
outstanding stock of any publicly traded company.
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(c)
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Damages; Specific
Enforcement/Injunctive Relief. Executive agrees that it
would be difficult to measure damages to Vectren from any breach of the
covenants contained in this Paragraph, but that such damages from any
breach would be great, incalculable and irremediable, and that damages
would be an inadequate remedy. Accordingly, Executive agrees that, (i)
upon a breach of any of the covenants contained in this Paragraph, Vectren
may have specific performance of the terms of this Agreement in any court
permitted by this Agreement and, (ii) in the case of Executive's material
breach of Subparagraph (a) or (b) above; Executive shall re-pay to Vectren
the amounts paid pursuant to Paragraph 3
(other than amounts paid pursuant to Subparagraph 3(b)) to which Executive
would not have been entitled absent this Agreement within fourteen (14)
days of written demand by Vectren and shall be deemed to have waived his
rights to any future payments pursuant to Paragraph 3 (other than amounts
payable pursuant to Subparagraph 3(b)) to which Executive would not have
been entitled absent this Agreement. The parties agree,
however, that specific performance, the return and waiver of payments and
the other remedies described herein shall not be the exclusive remedies,
and Vectren may enforce any other remedy or remedies available to it
either in law or in equity including, but not limited to, temporary,
preliminary, and/or permanent injunctive relief. If any term, provision or
covenant in this Paragraph is held to be unreasonable, arbitrary or
against public policy, a court may limit application of such term,
provision or covenant or modify such term, provision or covenant and
proceed to enforce this Paragraph as so limited or modified, which limited
or modified term, provision or covenant will be effective, binding and
enforceable against Executive.
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(d)
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Return of
Property. Upon the request of Vectren, Executive agrees
to return to the custody of Vectren all Vectren and its affiliates
property and proprietary information, as well as all copies thereof, that
are in Executive’s possession, custody or control. This includes all
tangible personal property (such as keys, credit cards, computers, hand
held devices, cell phones, etc.) and all writings, contracts, records,
files, tape recordings, correspondence, communications, summaries, data,
notes, memoranda, diskettes, or any other source containing information
which relates to or references Vectren or its affiliates and which was
provided by Vectren or its affiliates or obtained as a result of
Executive’s employment with
Vectren.
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8.
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Successors. This
Agreement shall apply to Executive, as well as to his heirs, executors,
administrators, and agents. This Agreement also shall apply to, and inure
to the benefit of the Company, the predecessors, successors, and assigns
of the Company and each past, present, or future employee, agent,
representative, insurer, trustee, officer, or director of the
Company.
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9.
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Severability. The parties
explicitly acknowledge and agree that the provisions of this Agreement are
both reasonable and enforceable. However, the provisions of this Agreement
are severable, and the invalidity of any one or more provisions shall not
affect or limit the enforceability of the remaining provisions. Should any
provision be held unenforceable for any reason, then such provision shall
be enforced to the maximum extent permitted by
law.
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10.
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Applicable
Law and Jurisdiction. This
Agreement shall be interpreted, enforced, and governed under the laws of
Indiana, without regard to conflict of laws principles thereof. Moreover,
while the parties do not contemplate any future disputes, Executive agrees
that any action or claim regarding this Agreement or otherwise brought
against the Company by or on behalf of Executive, Executive’s agents,
assigns, heirs, administrators, or executors that relate to Executive’s
employment or the termination thereof shall be maintained in Indiana. If
brought in state court, the action shall be filed in Vanderburgh County;
if brought in federal court, the action shall be filed in the Southern
District of Indiana. By signing this Agreement, Executive expressly
consents to personal jurisdiction in Indiana. Both parties waive the right
to a jury trial.
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11.
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Nonwaiver. The waiver
by the Company of a breach of any provision of this Agreement by Executive
shall not operate or be construed as a waiver of any subsequent breach by
Executive.
|
|
12.
|
Indemnification. Executive
shall be indemnified by Vectren against claims arising in connection with
Executive’s status as an employee, officer, director or agent of Vectren
in accordance with Vectren’s indemnity policies and programs for its
senior executives, subject to applicable
law.
|
|
13.
|
Knowledge
and Understanding. Executive
acknowledges that, in accordance with the ADEA,
Executive:
|
|
(a)
|
has
been, and is hereby, advised to consult with an attorney prior to
executing this Agreement and has had the opportunity to do
so;
|
|
(b)
|
has
been given a period of twenty-one (21) days within which to consider this
Agreement, which allows Executive to make a knowing, voluntary, and fully
informed choice about whether to sign this
Agreement;
|
|
(c)
|
has
availed Executive’s of all opportunities Executive deems necessary to make
a voluntary, knowing, and fully informed decision;
and
|
|
(d)
|
is
fully aware of Executive’s rights, and has carefully read and fully
understands all provisions of this Agreement before
signing.
|
|
14.
|
Effective
Date. This
Agreement may only be accepted during the twenty-one (21) day period after
Executive receives this Agreement. In the event Executive executes this
Agreement within the twenty-one (21) days following his receipt of this
Agreement, Executive shall have an additional period of seven (7) days to
revoke this Agreement. Any revocation shall be in writing and delivered
via facsimile (facsimile number (812)_464-4169
to the attention of General Counsel. This Agreement shall not become
effective, therefore, and none of the payments set forth in this Agreement
shall become due until Executive has executed the Agreement and the
seven-day revocation period has expired without revocation being
exercised.
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15.
|
No
Fiduciary Relationship. This
Agreement shall not be considered to create an escrow account, trust fund
or other funding arrangement of any kind or a fiduciary relationship
between Executive and
Vectren.
|
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16.
|
No
Pledge. Executive
shall not have any right to anticipate, pledge, alienate or assign any
rights under this Agreement and any effort to do so shall be null and
void. The amounts payable under this Agreement shall be exempt from the
claims of creditors or other claimants and from all orders, decrees,
levies and executions and any other legal process to the fullest extent
that may be permitted by
law.
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|
17.
|
Notices. All
notices and other communications hereunder shall be in writing and shall
he given by hand delivery to the other party or by registered or certified
mail, return receipt requested, postage prepaid, addressed as
follows:
|
If to
Executive: If to
Vectren:
Xxxx X.
Xxxxxxxxxx Vectren
Corporation
00 Xxxxxxx
Xxxxx Xxx Xxxxxxx
Xxxxxx
Xxxxxxxxxx,
XX 00000 Xxxxxxxxxx,
XX 00000
Attn: Xxxxxx X. Xxxxxxxxx,
General Counsel
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.
|
18.
|
Counterparts. This
Agreement may be executed in counterparts and when executed shall
constitute one agreement.
|
|
19.
|
Complete
Agreement. This
Agreement sets forth the complete agreement between the parties relating
to the subjects herein. Any prior agreement between Executive and Vectren
and/or Vectren’s predecessors or their past and present affiliates
relating to Executive’s employment (the “Prior Agreements”) are
terminated as of the Retirement Date without any remaining obligations of
either party thereunder. All payments made under this Agreement are in
full satisfaction of all amounts due Executive under the Prior Agreements.
Executive acknowledges and agrees that, in executing this Agreement,
Executive does not rely and has not relied upon any representations or
statements not set forth herein made by the Company with regard to the
subject matter, basis, or effect of this Agreement or otherwise.
Notwithstanding the foregoing, nothing in this
Agreement is intended to or shall limit, supersede, nullify, or affect any
other duty or responsibility Executive may have or owe to the Company by
virtue of any separate agreement or
obligation.
|
[Signature page immediately
follows.]
BY
SIGNING THIS RELEASE, I STATE THAT: I HAVE READ IT; I UNDERSTAND IT AND KNOW
THAT I AM GIVING UP IMPORTANT RIGHTS; I AGREE TO ALL THE TERMS CONTAINED WITHIN
THIS AGREEMENT; I AM AWARE OF MY RIGHT TO CONSULT WITH AN ATTORNEY BEFORE
SIGNING IT AND HAVE HAD THE OPPORTUNITY TO DO SO; I HAVE SIGNED IT KNOWINGLY AND
VOLUNTARILY.
Agreed To By:
/s/Xxxx X.
Xxxxxxxxxx
Xxxx X.
Xxxxxxxxxx
Dated: February 3,
2010
Vectren
Corporation
By: /s/ Xxxx X.
Xxxxxxxxx
Xxxx
X. Xxxxxxxxx, Chairperson
of
the Compensation and Benefits
Committee
Dated: February 3,
2010
Exhibit
A
Reaffirmation
of Retirement Agreement
I, Xxxx X. Xxxxxxxxxx,
hereby reaffirm the terms of the Retirement Agreement previously entered into
between Vectren
Corporation, an Indiana corporation and me on _February 3_, 2010,
(the “Agreement”), a
copy of which is attached hereto as Exhibit A and is
incorporated by reference into this subsequent Reaffirmation of Retirement
Agreement (“Reaffirmation”). I
hereby reaffirm that I have complied with all the terms of the Agreement and
that I will continue to do so. I also reaffirm and agree to all the
terms of the Agreement as delineated in Exhibit
A. This Reaffirmation shall not apply to rights or claims that
may arise after the date the parties sign this Reaffirmation.
BY
SIGNING THIS REAFFIRMATION, I STATE THAT: I HAVE READ IT; I UNDERSTAND IT AND
KNOW THAT I AM GIVING UP IMPORTANT RIGHTS; I AGREE TO ALL THE TERMS CONTAINED
WITHIN THE AGREEMENT; I AM AWARE OF MY RIGHT TO CONSULT AN ATTORNEY BEFORE
SIGNING IT; I HAVE SEVEN (7) DAYS AFTER SIGNING TO REVOKE THIS REAFFIRMATION;
AND I HAVE SIGNED THIS REAFFIRMATION KNOWINGLY AND VOLUNTARILY.
The
Parties have each executed this Reaffirmation of Retirement Agreement on the
dates indicated below.
Vectren
Corporation
/s/Xxxx X.
Xxxxxxxxxx By: /s/Xxxx X.
Xxxxxxxxx
Xxxx X.
Xxxxxxxxxx Xxxx
X. Xxxxxxxxx, Chairperson of the
Compensation
and Benefits Committee
Dated: February 3,
2010 Dated: February 3,
2010
