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EXHIBIT 10.34
AGREEMENT
This Agreement (the "Agreement") is entered into as of this ___ day of
________, 2001 (the "Agreement Date"), by and between NiSource Inc., a Delaware
corporation ("NiSource" which, as used herein, shall mean NiSource or any of its
Affiliates) and ___________________ ("Executive").
W I T N E S S E T H:
WHEREAS, Executive's employment with Columbia Energy Group ("Columbia")
and all of its Affiliates was constructively terminated by Columbia and its
Affiliates on November 1, 2000 and Executive was rehired by NiSource or an
Affiliate on such date; and
WHEREAS, Executive entered into an Employment Agreement with Columbia
dated July 14, 1999, as amended (the "Columbia Employment Agreement"), and has
terminated her rights under the Columbia Employment Agreement, except as
otherwise provided herein.
NOW, THEREFORE, in consideration for accepting employment with NiSource,
and in further consideration of the mutual covenants and promises contained
herein, and other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, the parties agree as follows:
1. DEFINITIONS.
(a) "Account" shall mean the NiSource Phantom Stock Unit Account
established for Executive hereunder containing benefits credited as NiSource
Phantom Stock Units, pursuant to Section 4.
(b) "Affiliate" shall have the meaning set forth in Rule 12b-2 under
the Securities Exchange Act of 1934.
(c) "Beneficiary" shall mean the person or entity designated by
Executive, by written instrument delivered to NiSource, to receive the benefits
payable with respect to
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her under the Agreement in the event OF her death. If Executive fails to
designate a Beneficiary, or if no Beneficiary survives Executive, such death
benefits shall be paid:
(i) to her surviving spouse;
(ii) if there is no surviving spouse, to her living descendants
per stirpes; or
(iii) if there is neither a surviving spouse nor descendants then
living, to her duly appointed and qualified executor or personal representative.
(d) "NiSource Phantom Stock Unit" shall mean a unit whose value is
related to the value of the common stock of NiSource.
2. SERVICE. Executive's service performed for Columbia or any of its
Affiliates prior to November 1, 2000 shall be credited for all purposes under
any employee benefit plan or program sponsored by Columbia, NiSource or any of
their Affiliates in which Executive participates at any time on or after
November 1, 2000.
3. BENEFITS. (a) In consideration of Executive's acceptance of
employment with NiSource her Account shall be credited with ________ NiSource
Phantom Stock Units. .
(b) Notwithstanding any provisions contained elsewhere in the
Agreement, the provisions contained in the following Sections of the Columbia
Employment Agreement shall be preserved, shall be incorporated herein by
reference and shall remain in effect pursuant to their terms:
(i) Section 8(f) - providing for a tax gross-up payment, which
shall apply to payments under the Columbia Employment Agreement and the
Agreement;
(ii) Section 10 - providing for reimbursement of litigation
expenses; and
(c) Notwithstanding any provisions contained elsewhere in the
Agreement, the benefits contained in the following Sections of the
Columbia
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Employment Agreement shall be provided to Executive if she
terminates employment with NiSource and all its Affiliates for any
reason, and at any time, during the three year period following
November 1, 2000:
(i) outplacement services, pursuant to Section 8(d)(ii)(B); and
(ii) continued health and welfare coverage for the remainder of
such three year period, pursuant to Section 8(d)(ii)(C).
4. NISOURCE PHANTOM STOCK UNIT ACCOUNT. A NiSource Phantom Stock Unit
Account shall be established for Executive. Amounts credited to Executive's
Account shall be measured in terms of NiSource Phantom Stock Units. Executive
shall be fully vested in her Account at all times.
5. DIVIDENDS. Amounts equivalent to dividends that would have been
declared on NiSource Phantom Stock Units credited to Executive's Account, had
such NiSource Phantom Stock Units actually constituted issued shares of common
stock of NiSource, shall be treated as follows:
(a) The amount of such dividend equivalents for each calendar year
shall, at the election of Executive, either be (i) paid to Executive in cash,
within 10 days after NiSource pays the related dividend on its common stock, or
(ii) credited to Executive's Account as additional NiSource Phantom Stock Units,
based on the price per share of common stock of NiSource, as listed on the New
York Stock Exchange at the close of business on the date each dividend related
to a dividend equivalent is declared.
(b) An election by Executive as to whether such dividend equivalents
shall be paid in cash or credited as additional NiSource Phantom Stock Units,
with respect to dividend equivalents for each calendar year, shall be in
writing, signed by Executive, and delivered to NiSource prior to January 1 of
the calendar year in which the dividends related to such dividend equivalents to
be deferred, or paid (as the case may be), are declared by NiSource. Such
election (and any subsequent election) shall continue until suspended or
modified in a writing delivered by Executive to NiSource, which new election
shall only apply to dividend equivalents that become applicable after the end of
the calendar year in which such election is delivered to NiSource.
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(c) Any such election made by Executive shall be irrevocable with
respect to any dividend equivalent covered by such election, including the
dividend equivalents applicable to the calendar year in which the election
suspending or modifying the prior election is delivered to NiSource.
(d) If no election is made by Executive for a calendar year, dividend
equivalents for such year shall be credited to Executive's Account as additional
NiSource Phantom Stock Units, in the manner set forth in paragraph (a) above.
6. DISTRIBUTION. Upon termination of employment of Executive with
NiSource and all of its Affiliates for any reason, Executive (or in the event of
death, her Beneficiary) shall be entitled to receive from NiSource an amount,
with respect to each NiSource Phantom Stock Unit then credited to Executive's
Account, equal to the greater of (a) the price per share of common stock of
NiSource, as listed on the New York Stock Exchange at the close of business on
the date of termination, and (b) 85% of the price per share of common stock of
NiSource, as listed on the New York Stock Exchange at the close of business on
November 1, 2000. Such amount shall be paid in a cash lump sum payment within 10
days following Executive's termination of employment with NiSource and all of
its Affiliates, but only if (except in the case of Executive's death) Executive
executes a Release in the form attached hereto as Exhibit A within 7 days after
Executive's termination of employment with NiSource and all of its Affiliates.
7. CHANGE IN CONTROL AND TERMINATION AGREEMENT. On the Agreement
Date, Executive and NiSource shall enter into a Change in Control and
Termination Agreement, in the form attached hereto as Exhibit B, applicable in
the event of a Change in Control of NiSource, as therein defined.
8. NISOURCE ASSIGNMENT. NiSource may not assign the Agreement, except
that NiSource's obligations hereunder shall be binding legal obligations of any
successor to all or substantially all of NiSource's business by purchase,
merger, consolidation, or otherwise.
9. EXECUTIVE ASSIGNMENT. No interest of Executive or her Beneficiary
under the Agreement, or any right to receive any payment or distribution
hereunder,
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shall be subject in any manner to sale, transfer, assignment, pledge,
attachment, garnishment, or other alienation or encumbrance of any kind, nor may
such interest or right to receive a payment or distribution be taken,
voluntarily or involuntarily, for the satisfaction of the obligations or debts
of, or other claims against, Executive or her Beneficiary, including claims for
alimony, support, separate maintenance, and claims in bankruptcy proceedings,
except pursuant to the laws of descent and distribution or pursuant to a
qualified domestic relations order.
10. BENEFITS UNFUNDED. All rights of Executive and her Beneficiary
under the Agreement shall at all times be entirely unfunded and no provision
shall at any time be made with respect to segregating any assets of NiSource for
payment of any amounts due hereunder. Neither Executive nor her Beneficiary
shall have any interest in or rights against any specific assets of NiSource or
any of its Affiliates, and Executive and her Beneficiary shall have only the
rights of a general unsecured creditor of NiSource and its Affiliates.
References to an Account shall be for bookkeeping purposes only, and shall not
constitute a segregation of assets of NiSource or any of its Affiliates.
11. WAIVER. No waiver by either party hereto at any time of any breach
by the other party of, or compliance with, any condition or provision of the
Agreement to be performed by the other party shall be deemed a waiver of any
other provisions or conditions at the same time or at any prior or subsequent
time.
12. APPLICABLE LAW. The Agreement shall be construed and interpreted
pursuant to the laws of Indiana.
13. ENTIRE AGREEMENT. The Agreement contains the entire Agreement
between NiSource and Executive and supersedes any and all previous agreements,
written or oral, among the parties relating to the subject matter hereof,
including the Columbia Employment Agreement, except as provided in paragraphs
(b) and (c) of Section 3. No amendment or modification of the terms of the
Agreement shall be binding upon the parties hereto unless reduced to writing and
signed by NiSource and Executive.
14. NO EMPLOYMENT CONTRACT. Nothing contained in the Agreement shall
be construed to be an employment contract between Executive and NiSource or any
of its
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Affiliates. Executive is employed at will and NiSource or any of its Affiliates
may terminate her employment at any time, with or without cause.
15. WITHHOLDING. NiSource or any of its Affiliates shall have the
right to deduct from all amounts paid pursuant to the Agreement any taxes
required by law to be withheld with respect to such awards.
16. COUNTERPARTS. The Agreement may be executed in counterparts, each
of which shall be deemed an original.
17. SEVERABILITY. In the event any provision of the Agreement is held
illegal or invalid, the remaining provisions of the Agreement shall not be
affected thereby.
18. SUCCESSORS. The Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective heirs, representatives and
successors.
19. NOTICE. Notices required under the Agreement shall be in writing
and sent by registered mail, return receipt requested, to the following
addresses or to such other address as the party being notified may have
previously furnished to the other party by written notice:
If to NiSource: NiSource Inc.
▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇
Phone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
With a copy to: ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇
6600 Sears Tower
▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Phone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
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If to Executive:
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Phone:
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IN WITNESS WHEREOF, Executive has hereunto set her hand, and NiSource has
caused these presents to be executed in its name on its behalf, all as of the
day and year first above written.
NISOURCE INC.
By:
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Title:
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/s/
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EXHIBIT A
GENERAL RELEASE
In consideration of the benefits set forth in the Agreement
attached hereto, the sufficiency of which consideration is hereby acknowledged,
I do hereby fully, finally and unconditionally release and forever discharge
NiSource, and all its parent, sister and subsidiary corporations and all of its
affiliates, as well as all of its former and current directors, officers,
employees, attorneys, agents, predecessors, successors and assigns, in their
personal and corporate capacities, from any and all liabilities, actions, causes
of action, claims, rights, obligations, charges, damages, costs, attorneys'
fees, suits, re-employment rights and demands of any and every kind, nature and
character, known and unknown, liquidated or unliquidated, absolute or
contingent, in law or in equity, enforceable under any local, state, or federal
statute or ordinance, or under the common law of the United States, from the
beginning of the world to the date of this General Release, including, but not
limited to, all claims relating to the Age Discrimination in Employment Act of
1967, as amended, 29 U.S.C. Section 621 et seq. and the specific statutes
referred to in footnote(1) and the Indiana doctrines of defamation, libel,
slander, invasion of privacy, intentional infliction of emotional distress,
interference with contractual relations, retaliatory discharge, employment
contracts, wrongful discharge, implied contracts or implied covenants of good
faith, or fair dealing, and any other statute, authority or law, providing a
cause of action as to my employment with NiSource and all its parent, sister and
subsidiary corporations and all of its affiliates, and/or its termination. I
also agree not to ▇▇▇ NiSource or any of the other released entities or persons
with respect to the claims covered by the foregoing General Release.
This General Release shall not apply to my right to any
distribution or benefit under: (1) the Agreement attached hereto; (2) the Change
in Control and Termination Agreement entered into as of December __, 2000
between NiSource and me; (3) the letter agreement dated December __, 2000
delivered to me by NiSource, relating to an enhancement of my pension benefits
under the tax qualified retirement plan maintained by NiSource or any of its
Affiliates in which I am participating on the date of my termination of
employment with NiSource any of its Affiliates; (4) any residual payments under
the Columbia Employment or Agreement which have not been terminated or waived by
me; or (5) or under any agreements entered into between me and NiSource or any
of its Affiliates since December __, 2000, including any of their employee
benefit plans.
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(1) Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C.ss.2000e et
seq.; the Employee Retirement Income Security Act of 1974, as amended, 29
U.S.C.ss.1001 et seq.; the Rehabilitation Act of 1973, as amended, 29
U.S.C.ss.701 et seq.; the Americans with Disabilities Act of 1990, as amended,
42 U.S.C.ss.12101 et seq.; the Family and Medical Leave Act of 1993, 29
▇.▇.▇.▇▇. 2601 et seq.; the Fair Labor Standards Act of 1938, as amended, 29
U.S.C.ss.201 et seq.; the civil Rights Act of April 9, 1866, 42 U.S.C.ss.1981 et
seq.; the National Labor-Management Relations Act, 29 U.S.C.ss.141 et seq.; the
Worker Adjustment Retraining Notification Act, 29 U.S.C.ss.2101 et seq.; the
Occupational Safety and Health Act, 29 U.S.C.ss.651 et seq.; the Indiana Civil
Rights Law, Ind. Codess.22-9-1 et seq.
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I acknowledge that I have been hereby advised in writing by
NiSource to consult with an attorney prior to executing this General Release and
have been given a period of 21 days within which to consider its terms.
For a period of 7 days following my execution of this General
Release, I shall have the right to revoke this General Release and it shall not
become effective or enforceable until such revocation period has expired.
I also acknowledge having read and understood the provisions of
this General Release and represent that the execution of this General Release
constitutes my knowing and voluntary act, made without coercion or intimidation.
I understand that this General Release is binding upon me, my heirs, executors
and administrators.
DATED:
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DATED:
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Witness' Signature
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EXHIBIT B
CHANGE IN CONTROL AND TERMINATION AGREEMENT
NiSource Inc., a Delaware corporation ("Employer"), which as used herein
shall mean NiSource Inc. and all of its Affiliates, and _________________
("Executive") hereby enter into a Change in Control and Termination Agreement as
of December __, 2000 ("Agreement"), which Agreement is hereinafter set forth.
WITNESSETH:
WHEREAS, Employer desires to provide security to Executive in connection
with Executive's employment with Employer in the event of a Change in Control;
and
WHEREAS, Executive and Employer desire to enter into this Agreement
pertaining to the terms of the security Employer is providing to Executive with
respect to her employment in the event of a Change in Control;
NOW, THEREFORE, in consideration of the mutual covenants and promises
contained herein, and other good and valuable consideration, the receipt of
which is hereby acknowledged, the parties agree as follows:
1. Term. The term of this Agreement shall be the period beginning on
the date hereof and terminating on the date 36 months after such date (the
"Term"), provided that for each day from and after the date hereof the Term will
automatically be extended for an additional day, unless either Employer or
Executive has given written notice to the other party of its or her election to
cease such automatic extension, in which case the Term shall be the 36-month
period beginning on the date such notice is received by such other party.
2. Definitions. For purposes of this Agreement:
(a) "Affiliate" or "Associate" shall have the meaning set forth
in Rule 12b-2 under the Securities Exchange Act of 1934.
(b) "Base Salary" shall mean Executive's monthly base salary at
the
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rate in effect on the date of a reduction for purposes of paragraph (g)
of this Section, or on the date of a termination of employment under
circumstances described in subsections 3(a) or (b) below, whichever is
higher; provided, however, that such rate shall in no event be less than
the highest rate in effect for Executive at any time during the Term.
(c) "Beneficiary" shall mean the person or entity designated by
Executive, by written instrument delivered to Employer, to receive the
benefits payable under this Agreement in the event of death. If Executive
fails to designate a Beneficiary, or if no Beneficiary survives
Executive, such death benefits shall be paid:
(i) to her surviving spouse; or
(ii) if there is no surviving spouse, to her living
descendants per stirpes; or
(iii) if there is neither a surviving spouse nor
descendants, to her duly appointed and qualified
executor or personal representative.
(d) "Bonus" shall mean Executive's target annual incentive
bonus compensation for the calendar year in which the date of a
termination of employment under circumstances described in subsection
3(a) below occurs, under the incentive bonus compensation plan then
maintained by Employer; provided, however, that such target annual
incentive bonus compensation shall in no event be less than the highest
target annual incentive bonus compensation of Executive under any such
incentive bonus compensation plan for any calendar year commencing during
the Term.
(e) A "Change in Control" shall be deemed to take place on the
occurrence of any of the following events:
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(1) The acquisition by an entity, person or group
(including all Affiliates or Associates of such entity, person or
group) of beneficial ownership, as that term is defined in Rule
13d-3 under the Securities Exchange Act of 1934, of capital stock
of NiSource Inc. entitled to exercise more than 30% of the
outstanding voting power of all capital stock of NiSource Inc.
entitled to vote in elections of directors ("Voting Power");
(2) The effective time of (i) a merger or consolidation
of NiSource Inc. with one or more other corporations as a result
of which the holders of the outstanding Voting Power of NiSource
Inc. immediately prior to such merger or consolidation (other than
the surviving or resulting corporation or any Affiliate or
Associate thereof) hold less than 50% of the Voting Power of the
surviving or resulting corporation, or (ii) a transfer of 30% of
the Voting Power, or a Substantial Portion of the Property, of
NiSource Inc. other than to an entity of which NiSource Inc. owns
at least 50% of the Voting Power; or
(3) The election to the Board of Directors of NiSource
Inc. of candidates who were not recommended for election by the
Board of Directors of NiSource Inc. in office immediately prior to
the election, if such candidates constitute a majority of those
elected in that particular election.
Notwithstanding the foregoing, a Change in Control shall not be deemed to take
place by virtue of any transaction in which Executive is a participant in a
group effecting an acquisition of NiSource Inc. and, after such acquisition,
Executive holds an equity interest in the entity that has acquired NiSource Inc.
(f) "Good Cause" shall be deemed to exist if, and only if:
(1) Executive engages in acts or omissions constituting
dishonesty, intentional breach of fiduciary obligation or
intentional
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wrongdoing or malfeasance, in each case that results in
substantial harm to Employer; or
(2) Executive is convicted of a criminal violation
involving fraud or dishonesty.
(g) "Good Reason" shall be deemed to exist if, and only if:
(1) there is a significant change in the nature or the
scope of Executive's authorities or duties;
(2) there is a significant reduction in Executive's
monthly rate of Base Salary, her opportunity to earn a
bonus under an incentive bonus compensation plan
maintained by Employer or her benefits; or
(3) Employer changes by 100 miles or more the principal
location in which Executive is required to perform
services.
(h) "Pension Plan" shall mean any Retirement Plan that is a
defined benefit plan as defined in Section 3(35) of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA").
(i) "Retirement Plan" shall mean any qualified or supplemental
employee pension benefit plan, as defined in Section 3(2) of ERISA,
currently or hereinafter made available by Employer in which Executive is
eligible to participate.
(j) "Severance Period" shall mean the period beginning on the
date Executive's employment with Employer terminates under circumstances
described in subsection 3(a) and ending on the date 36 months thereafter.
(k) "Substantial Portion of the Property of NiSource Inc. "
shall mean 50% of the aggregate book value of the assets of NiSource Inc.
and its Affiliates and Associates as set forth on the most recent balance
sheet of NiSource Inc.,
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prepared on a consolidated basis, by its regularly employed, independent,
certified public accountants.
(l) "Welfare Plan" shall mean any health and dental plan,
disability plan, survivor income plan or life insurance plan, as defined
in Section 3(1) of ERISA, currently or hereafter made available by
Employer in which Executive is eligible to participate.
3. Benefits Upon Termination of Employment. (a) The following
provisions will apply if a Change in Control occurs during the Term, and (i) at
any time during the 24 months after the Change in Control occurs (whether during
or after the expiration of the Term), the employment of Executive with Employer
is terminated by Employer for any reason other than Good Cause, or Executive
terminates her employment with Employer for Good Reason, or (ii) at any time
during the seventh month after the Change in Control occurs (whether during or
after the expiration of the Term), Executive terminates her employment with
Employer for any reason:
(1) Employer shall pay Executive an amount equal to 36 times
the sum of (a) Executive's Base Salary plus (b) one-twelfth of her Bonus.
Such amount shall be paid to Executive in a lump sum within 180 days
after her date of termination of employment; provided, however,
Executive, by written notice to Employer, may elect to receive such
payment on any date that is no earlier than the later to occur of (i) the
date 10 days after the date of termination, and (ii) the date 10 days
after receipt of such notice.
(2) Employer shall pay Executive an amount equal to the pro
rata portion of Executive's target annual incentive bonus compensation
for the calendar year in which the date of termination of employment
occurs, under the incentive bonus compensation plan then maintained by
Employer, that is applicable to the period commencing on the first day of
such calendar year and
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ending on the date of termination. Such amount shall be paid to Executive
in a lump sum within 180 days after her date of termination of
employment; provided, however, Executive, by written notice to Employer,
may elect to receive such payment on any date that is no earlier than the
later to occur of (i) the date 10 days after the date of termination, and
(ii) the date 10 days after receipt of such notice.
(3) Executive shall receive any and all benefits accrued under
any Retirement Plan, Welfare Plan or other plan or program in which she
participates at the date of termination of employment, to the date of
termination of employment, the amount, form and time of payment of such
benefits to be determined by the terms of such Retirement Plan, Welfare
Plan and other plan or program, and Executive's employment shall be
deemed to have terminated by reason of retirement, and without regard to
vesting limitations in all such Plans and other plans or programs not
subject to the qualification requirements of Section 401 (a) of the
Internal Revenue Code of 1986 as amended ("Code"), under circumstances
that have the most favorable result for Executive thereunder for all
purposes of such Plans and other plans or programs. Payment shall be made
at the earliest date permitted under any such Plan or other plan or
program that is not funded with a trust agreement.
(4) (A) Employer shall pay to Executive a monthly Supplemental
Pension Benefit in an amount equal to the amount determined pursuant to
clause (i) below less the amount determined pursuant to clause (ii)
below:
(i) the aggregate monthly amount of the pension benefit
("Pension") that would have been payable to Executive under all
Pension Plans if that Pension were computed (A) by treating the
Severance Period as service for all purposes of the Pension Plans
and (B) by considering
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her compensation during the Severance Period to be her Base Salary
and one-twelfth of her Bonus for all purposes of the Pension
Plans;
(ii) the aggregate monthly amount of any Pension actually
paid to Executive under all Pension Plans.
(B) The Supplemental Pension Benefit payable to
Executive hereunder shall be paid (i) commencing at the later to occur of
the last day of the Severance Period or the date payment of her Pension
commences under the Pension Plans; and (ii) in the same form as is
applicable to the Pension payable to Executive under the Pension Plans.
(C) If Executive dies prior to commencement of payment
to her of her Pension under the Pension Plans, under circumstances in
which a death benefit under the Pension Plans is payable to her surviving
spouse or other beneficiary, then Employer shall pay a monthly
Supplemental Death Benefit to Executive's surviving spouse or other
beneficiary entitled to receive the death benefit payable with respect to
Executive under the Pension Plans in an amount equal to the amount
determined pursuant to clause (i) below less the amount determined
pursuant to clause (ii) below:
(i) the aggregate monthly amount of the death benefit
that would have been payable to the surviving spouse or other
beneficiary of Executive under the Pension Plans if that death
benefit were computed (A) by treating the Severance Period as
service for all purposes of the Pension Plans and (B) by
considering her compensation during the Severance Period to be her
Base Salary and one-twelfth of her Bonus for all purposes of the
Pension Plans;
(ii) the aggregate monthly amount of any death benefit
actually paid to the surviving spouse or other beneficiary of
Executive under the
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Pension Plans.
(D) The Supplemental Death Benefit payable with respect
to Executive hereunder shall be payable at the same time, in the same
form, and to the same persons as is applicable to the death benefit
payable with respect to Executive under the Pension Plans.
(E) Notwithstanding the foregoing provisions, the total
of the actual years of service of Executive for purposes of each of the
Pension Plans and the years of service for which credit is given pursuant
to subparagraphs (3)(A) and (C) shall not exceed the maximum number of
years of service, if any, that can be considered pursuant to the terms of
such Pension Plan.
(F) Any actuarial adjustments made under the Pension
Plans with respect to the form or time of payment of a Pension or death
benefit to Executive or her surviving spouse or other beneficiary under
the Pension Plans shall also be applicable to the Supplemental Pension
Benefit or Supplemental Death Benefit payable hereunder and shall be
based upon the same actuarial assumptions as those specified in the
Pension Plans.
(5) If upon the date of termination of Executive's employment
Executive holds any options with respect to stock of Employer, all such
options will immediately become exercisable upon such date and will be
exercisable for 200 days thereafter. Any restrictions on stock of
Employer owned by Executive on the date of termination of her employment
will lapse on such date.
(6) During the Severance Period Executive and her spouse and
other dependents will continue to be covered by all Welfare Plans
maintained by Employer in which she and her spouse and other dependents
were participating immediately prior to the date of her termination as if
she continued to be an employee of Employer and Employer will continue to
pay the costs of coverage
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of Executive and her spouse and other dependents under such Welfare Plans
on the same basis as is applicable to active employees covered
thereunder; provided that, if participation in any one or more of such
Welfare Plans is not possible under the terms thereof, Employer will
provide substantially identical benefits. Coverage under any such Welfare
Plan will cease if and when Executive obtains employment with another
employer during the Severance Period, and becomes eligible for coverage
under any substantially similar Welfare Plan provided by her new
employer.
(7) During the Severance Period, Executive shall not be
entitled to reimbursement for fringe benefits, including without
limitation, dues and expenses related to club memberships, automobile
expenses, expenses for professional services and other similar
perquisites.
(b) If the employment of Executive with Employer is terminated by
Employer or Executive other than under circumstances set forth in subsection
3(a), Executive's Base Salary shall be paid through the date of her termination,
and Employer shall have no further obligation to Executive or any other person
under this Agreement. Such termination shall have no effect upon Employee's
other rights, including but not limited to, rights under the Retirement Plans
and the Welfare Plans.
(c) Notwithstanding anything herein to the contrary, (1) in the event
Employer shall terminate the employment of Executive for Good Cause hereunder,
Employer shall give Executive at least thirty (30) days prior written notice
specifying in detail the reason or reasons for Executive's termination, and (2)
in the event Executive terminates her employment for Good Reason hereunder,
Executive shall give Employer at least thirty (30) days prior written notice
specifying in detail the reason or reasons for Executive's termination.
(d) This Agreement shall have no effect, and Employer shall have no
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obligations hereunder, if Executive's employment terminates for any reason at
any time other than during the 24 months following a Change in Control.
4. Excise Tax. (a) In the event that a Change in Control shall occur,
and a final determination is made by legislation, regulation, ruling directed to
Executive or Employer, by court decision, or by independent tax counsel
described in subsection (b) next below, that the aggregate amount of any payment
made to Executive (1) hereunder, and (2) pursuant to any plan, program or policy
of Employer in connection with, on account of, or as a result of, such Change in
Control ("Total Payments") will be subject to the excise tax provisions of
Section 4999 of the Code, or any successor section thereof, Executive shall be
entitled to receive from Employer, in addition to any other amounts payable
hereunder, a lump sum payment (the "Gross-Up Payment"), sufficient to cover the
full cost of such excise taxes and Executive's federal, state and local income
and employment taxes on this additional payment so that the net amount retained
by Executive, after the payment of all such excise taxes on the Total Payments,
and all federal, state and local income and employment taxes and excise taxes on
the Gross-Up Payment, shall be equal to the Total Payments. The Total Payments,
however, shall be subject to any federal, state and local income and employment
taxes thereon. For this purpose, Executive shall be deemed to be in the highest
marginal rate of federal, state and local taxes. The Gross-Up Payment shall be
made at the same time as the payments described in subsections 3(a)(1) and (2)
above.
(b) Employer and Executive shall mutually and reasonably determine the
amount of the Gross-Up Payment to be made to Executive pursuant to the preceding
subsection. Prior to the making of any such Gross-Up Payment, either party may
request a determination as to the amount of such Gross-Up Payment. If such a
determination is requested, it shall be made promptly, at Employer's expense, by
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independent tax counsel selected by Executive and approved by Employer (which
approval shall not unreasonably be withheld), and such determination shall be
conclusive and binding on the parties. Employer shall provide such information
as such counsel may reasonably request, and such counsel may engage accountants
or other experts at Employer's expense to the extent that they deem necessary or
advisable to enable them to reach a determination. The term "independent tax
counsel," as used herein, shall mean a law firm of recognized expertise in
federal income tax matters that has not previously advised or represented either
party. It is hereby agreed that neither Employer nor Executive shall engage any
such firm as counsel for any purpose, other than to make the determination
provided for herein, for three years following such firm's announcement of its
determination.
(c) In the event the Internal Revenue Service subsequently adjusts the
excise tax computation made pursuant to subsections 4(a) and (b) above, Employer
shall pay to Executive, or Executive shall pay to Employer, as the case may be,
the full amount necessary to make either Executive or Employer whole had the
excise tax initially been computed as subsequently adjusted, including the
amount of any underpaid or overpaid excise tax, and any related interest and/or
penalties due to the Internal Revenue Service.
5. Setoff. No payments or benefits payable to or with respect to
Executive pursuant to this Agreement shall be reduced by any amount Executive or
her spouse or Beneficiary, or any other beneficiary under the Pension Plans, may
earn or receive from employment with another employer or from any other source,
except as expressly provided in subsection 3(a)(6).
6. Death. If Executive's employment with Employer terminates under
circumstances described in subsections 3(a) or (b), then upon Executive's
subsequent death, all unpaid amounts payable to Executive under subsections
3(a)(1), (2) or (3) or
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3(b), or Section 4, if any, shall be paid to her Beneficiary, all amounts
payable under subsection 3(a)(4) shall be paid pursuant to the terms of said
subsection to her spouse or other beneficiary under the Pension Plans, and if
subsection 3(a) applies, her spouse and other dependents shall continue to be
covered under all applicable Welfare Plans during the remainder of the Severance
Period, if any, pursuant to subsection 3(a)(6).
7. No Solicitation of Representatives and Employees. Executive agrees
that she shall not, during the Term or the Severance Period, directly or
indirectly, in her individual capacity or otherwise, induce, cause, persuade, or
attempt to do any of the foregoing in order to cause, any representative, agent
or employee of Employer to terminate such person's employment relationship with
Employer, or to violate the terms of any agreement between said representative,
agent or employee and Employer.
8. Confidentiality. Executive acknowledges that preservation of a
continuing business relationship between Employer and their respective
customers, representatives, and employees is of critical importance to the
continued business success of Employer and that it is the active policy of
Employer to guard as confidential certain information not available to the
public and relating to the business affairs of Employer. In view of the
foregoing, Executive agrees that she shall not during the Term and at any time
thereafter, without the prior written consent of Employer, disclose to any
person or entity any such confidential information that was obtained by
Executive in the course of her employment by Employer. This section shall not be
applicable if and to the extent Executive is required to testify in a
legislative, judicial or regulatory proceeding pursuant to an order of Congress,
any state or local legislature, a judge, or an administrative law judge or is
otherwise required by law to disclose such information.
9. Forfeiture. If Executive shall at any time violate any obligation
of her under Sections 7 or 8 in a manner that results in material damage to the
Employer or its business, she shall immediately forfeit her right to any
benefits under this Agreement,
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and Employer shall thereafter have no further obligation hereunder to Executive
or her spouse, Beneficiary or any other person.
10. Executive Assignment. No interest of Executive, her spouse or any
Beneficiary, or any other beneficiary under the Pension Plans, under this
Agreement, or any right to receive any payment or distribution hereunder, shall
be subject in any manner to sale, transfer, assignment, pledge, attachment,
garnishment, or other alienation or encumbrance of any kind, nor may such
interest or right to receive a payment or distribution be taken, voluntarily or
involuntarily, for the satisfaction of the obligations or debts of, or other
claims against, Executive or her spouse, Beneficiary or other beneficiary,
including claims for alimony, support, separate maintenance, and claims in
bankruptcy proceedings.
11. Benefits Unfunded. Except as otherwise provided in Section 13, all
rights under this Agreement of Executive and her spouse, Beneficiary or other
beneficiary under the Pension Plans, shall at all times be entirely unfunded,
and no provision shall at any time be made with respect to segregating any
assets of Employer for payment of any amounts due hereunder. None of Executive,
her spouse, Beneficiary or any other beneficiary under the Pension Plans shall
have any interest in or rights against any specific assets of Employer, and
Executive and her spouse, Beneficiary or other beneficiary shall have only the
rights of a general unsecured creditor of Employer. Except as otherwise provided
in Section 13, and notwithstanding the preceding provisions of this Section, the
Nominating and Compensation Committee of the Board of Directors of Employer, in
its discretion, shall have the right, at any time and from time to time, to
cause amounts payable to Executive or her Beneficiary hereunder to be paid to
the trustee of the NIPSCO Industries, Inc. Umbrella Trust For Management
established effective January 1, 1991, as amended from time to time, or any
similar trust at any time established by Employer ("Trust").
▇-▇▇
▇▇
▇▇. Waiver. No waiver by any party at any time of any breach by the
other party of, or compliance with, any condition or provision of this Agreement
to be performed by such other party shall be deemed a waiver of any other
provisions or conditions at the same time or at any prior or subsequent time.
13. Litigation Expenses. Employer shall pay Executive's reasonable
attorneys' fees and legal expenses in connection with any judicial proceeding to
enforce this Agreement, or to construe or determine the validity of this
Agreement or otherwise in connection therewith, whether or not Executive is
successful in such litigation. Within 10 days following the occurrence of a
Potential Change in Control (as defined in the Trust described in Section 11),
the Nominating and Compensation Committee of the Board of Directors of Employer
shall cause Employer to contribute the sum of $100,000 to the Trust to be
applied in satisfaction of Employer's obligations under this Section. The
Nominating and Compensation Committee shall cause Employer to contribute
additional amounts to the Trust, at such time or times as the Committee deems
appropriate, to the extent the aggregate of (1) the aforementioned sum of
$100,000, plus Trust earnings thereon, and (2) any additional Employer
contributions to the Trust, plus Trust earnings thereon, is not sufficient to
satisfy in full Employer's obligations under this Section.
14. Applicable Law. This Agreement shall be construed and interpreted
pursuant to the laws of Indiana.
15. Entire Agreement. This Agreement contains the entire Agreement
between the Employer and Executive and supersedes any and all previous
agreements; written or oral; between the parties relating to the subject matter
hereof. No amendment or modification of the terms of this Agreement shall be
binding upon the parties hereto unless reduced to writing and signed by Employer
and Executive.
16. No Employment Contract. Nothing contained in this Agreement shall
be
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construed to be an employment contract between Executive and Employer.
17. Counterparts. This Agreement may be executed in counterparts, each
of which shall be deemed an original.
18. Severability. In the event any provision of this Agreement is held
illegal or invalid, the remaining provisions of this Agreement shall not be
affected thereby.
19. Successors. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective heirs, representatives and
successors.
20. Employment with an Affiliate. For purposes of this Agreement, (A)
employment or termination of employment of Executive shall mean employment or
termination of employment with Employer and all Affiliates, (B) Base Salary and
Bonus shall include remuneration received by Executive from Employer and all
Affiliates, and (C) the terms Pension Plan, Retirement Plan and Welfare Plan
maintained or made available by Employer shall include any such plans of any
Affiliate of Employer.
21. Notice. Notices required under this Agreement shall be in writing
and sent by registered mail, return receipt requested, to the following
addresses or to such other address as the party being notified may have
previously furnished to the other party by written notice:
If to Employer: NiSource Inc.
▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇
If to Executive:
---------------------
---------------------
---------------------
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IN WITNESS WHEREOF, Executive has hereunto set her hand, and Employer has
caused these presents to be executed in its name on its behalf, all on the ___
day of_______, 200_, effective __________ __, 200_.
NISOURCE INC.
By:
------------------------------------------
Title:
----------------------------------------
-----------------------------------------------
______________________, Executive
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Schedule of Parties to Executive Agreements:
The following NiSource executives have entered into an Agreement in
substantially the form hereof with NiSource: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (20,336 Units),
▇▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇▇▇ (73,020 Units) and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ (38,907 Units).
The contracts are substantially identical in all material respects except as to
the parties, the execution dates, the number of Units credited to the employee
(such number is identified by parenthetical above), and terms of the change of
control agreements attached as Exhibit B thereto (which are substantially
identical in all material respects except as to the parties, the execution
dates, whether the termination provisions of the agreement apply (from 7-24
months), the monthly base payout (24 to 36 months), and whether or not the
executive's payout is grossed up for taxes).
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