Certain Terminations. (i) If a Termination occurs during the Employment Period, Cinergy will pay to the Executive a lump sum amount, in cash, equal to the sum of the following Accrued Obligations: (1) the Executive's Annual Base Salary through the Date of Termination to the extent not previously paid; (2) an amount equal to the AIP Benefit for the fiscal year that includes the Date of Termination multiplied by a fraction, the numerator of which is the number of days from the beginning of that fiscal year to and including the Date of Termination and the denominator of which is three hundred and sixty-five (365). The AIP Benefit will be determined using a percentage determined by the Chief Executive Officer, in his discretion, up to the maximum percentage specified in Subsection 3b, but no less than the Target Annual Bonus. (3) any compensation previously deferred by the Executive (together with any accrued interest or earnings) and any accrued vacation pay, in each case to the extent not previously paid. The Accrued Obligations described in this Paragraph 5a(i) will be paid within thirty (30) days after the Date of Termination. These Accrued Obligations are payable to the Executive regardless of whether a Change in Control has occurred. (ii) Prior to the occurrence of a Change in Control, and in the event of (A) a Termination other than by reason of the Executive's death, or (B) the Executive's termination of his employment during the Employment Period for Good Reason, Cinergy will pay the Accrued Obligations, and Cinergy will have the following obligations: (1) Cinergy will pay to the Executive a lump sum amount, in cash, equal to three (3) times the sum of the Annual Base Salary and the AIP Benefit. For this purpose, the Annual Base Salary will be at the rate in effect at the time Notice of Termination is given (without giving effect to any reduction in Annual Base Salary, if any, prior to the termination). The AIP Benefit will be determined using a percentage determined by the Chief Executive Officer, in his discretion, which will not be less than the Executive's annual target percentage for the fiscal year in which the Termination occurs and will not be greater than the maximum percentage specified in Subsection 3b. This lump sum will be paid within thirty (30) days of the Date of Termination. (2) Cinergy will pay to the Executive the value of all deferred compensation amounts and all executive life insurance benefits whether or not they are otherwise currently vested or payable. Payment will be made in accordance with the terms of the applicable plan or program. (3) Except as provided under Clauses (A) and (B) below, Cinergy will continue, until the end of the Employment Period, medical and dental benefits to the Executive and/or the Executive's family at least equal to those that would have been provided if the Executive's employment had not been terminated (excluding benefits to which the Executive has waived his rights in writing). The benefits described in the preceding sentence will be in accordance with the medical and welfare benefit plans, practices, programs, or policies of Cinergy (the "M&W Plans") as then currently in effect and applicable generally to other Cinergy senior executives and their families. (A) If, as of the Executive's Date of Termination, the Executive meets the eligibility requirements for Cinergy's retiree medical and welfare benefit plans, the provision of those retiree medical and welfare benefit plans to the Executive will satisfy Cinergy's obligation under this Subparagraph 5a(ii)(3). (B) If, as of the Executive's Date of Termination, the provision to the Executive of the M&W Plan benefits described in this Subparagraph 5a(ii)(3) would either (1) violate the terms of the M&W Plans or (2) violate any of the Code's nondiscrimination requirements applicable to the M&W Plans, then Cinergy, in its sole discretion, may elect to pay the Executive, in lieu of the M&W Plan benefits described under this Subparagraph 5a(ii)(3), a lump sum cash payment equal to the total monthly premiums that would have been paid by Cinergy for the Executive under the M&W Plans from the Date of Termination through the end of the Employment Period. Nothing in this Clause will affect the Executive's right to elect COBRA continuation coverage under a M&W Plan in accordance with applicable law. (C) If the Executive becomes employed by another employer and is eligible to receive medical or other welfare benefits under another employer-provided plan, any benefits provided to the Executive under the M&W Plans will be secondary to those provided under the other employer-provided plan during the Executive's applicable period of eligibility. (4) Ownership of the automobile assigned to the Executive by Cinergy will be transferred to the Executive within 30 days of the Date of Termination. The effect of this transfer will be grossed up for federal and state income taxes as soon as administratively feasible after the transfer is effective. (5) Cinergy will provide tax counseling services through an agency selected by the Executive, not to exceed Fifteen Thousand Dollars ($15,000.00) in cost. (iii) In the event of Termination by Cinergy or by the Executive for Good Reason upon or during the twenty-four (24) month period after the occurrence of a Change in Control, then in lieu of any further salary payments to the Executive for periods subsequent to the Date of Termination and in lieu of any other benefits payable pursuant to Paragraph 5a(ii), Cinergy will have the following obligations: (1) Cinergy will pay to the Executive a lump sum severance payment, in cash, equal to the greater of: (A) the present value of all amounts and benefits that would have been due under Paragraph 5a(ii), excluding Subparagraphs 5a(ii)(3), 5a(ii)(4), and 5a(ii)(5), or (B) three (3) times the sum of (x) the higher of the Executive's Annual Base Salary in effect immediately prior to the occurrence of the event or circumstance upon which the Notice of Termination is based or in effect immediately prior to the Change in Control, and (y) the higher of the amount paid to the Executive pursuant to all annual incentive compensation or bonus plans or programs maintained by Cinergy in the year preceding that in which the Date of Termination occurs or in the year preceding that in which the Change in Control occurs; and (2) For a thirty-six (36) month period after the Date of Termination, Cinergy will arrange to provide the Executive with life, disability, accident, and health insurance benefits substantially similar to those that the Executive is receiving immediately prior to the Notice of Termination (without giving effect to any reduction in those benefits subsequent to a Change in Control that constitutes Good Reason), except for any benefits that were waived by the Executive in writing. If Cinergy arranges to provide the Executive with life, disability, accident, and health insurance benefits, those benefits will be reduced to the extent comparable benefits are actually received by or made available to the Executive without cost during the thirty-six (36) month period following the Executive's Date of Termination. The Executive must report to Cinergy any such benefits that he actually receives. In lieu of the benefits described in the preceding sentences, Cinergy, in its sole discretion, may elect to pay to the Executive a lump sum cash payment equal to thirty-six (36) times the monthly premiums that would have been paid by Cinergy to provide those benefits to the Executive. Nothing in this Subparagraph 5a(iii)(2) will affect the Executive's right to elect COBRA continuation coverage in accordance with applicable law. (3) Ownership of the automobile assigned to the Executive by Cinergy will be transferred to the Executive within 30 days of the Date of Termination. The effect of this transfer will be grossed up for federal and state income taxes as soon as administratively feasible after the transfer is effective. (4) Cinergy will provide tax counseling services through an agency selected by the Executive, not to exceed Fifteen Thousand Dollars ($15,000.00) in cost. For purposes of this Paragraph (iii), the Executive will be deemed to have incurred a Termination following a Change in Control if the Executive's employment is terminated prior to a Change in Control, without Cause at the direction of a Person who has entered into an agreement with Cinergy, the consummation of which will constitute a Change in Control, or if the Executive terminates his employment for Good Reason prior to a Change in Control if the circumstances or event that constitutes Good Reason occurs at the direction of such a Person.
Appears in 4 contracts
Sources: Employment Agreement (Union Light Heat & Power Co), Employment Agreement (Union Light Heat & Power Co), Employment Agreement (Union Light Heat & Power Co)
Certain Terminations. (i) If a Qualifying Termination occurs during the Employment Period, Cinergy will pay to the Executive a lump sum amount, in cash, equal to the sum of the following Accrued Obligations:
(1) the pro-rated portion of the Executive's ’s Annual Base Salary payable through the Date of Termination Termination, to the extent not previously paid;.
(2) any amount payable to the Executive under the Annual Incentive Plan in respect of the most recently completed fiscal year, to the extent not theretofore paid.
(3) an amount equal to the AIP Benefit for the fiscal year that includes the Date of Termination multiplied by a fraction, the numerator of which is the number of days from the beginning of that fiscal year to and including the Date of Termination and the denominator of which is three hundred and sixty-five (365). The AIP Benefit component of the calculation will be determined using a percentage equal to the annual bonus that would have been earned by the Executive pursuant to any annual bonus or incentive plan maintained by Cinergy in respect of the fiscal year in which occurs the Date of Termination, determined by projecting Cinergy’s performance and other applicable goals and objectives for the Chief Executive Officer, in his discretion, up entire fiscal year based on Cinergy’s performance during the period of such fiscal year occurring prior to the maximum percentage specified in Subsection 3bDate of Termination, but no less than the Target Annual Bonusand based on such other assumptions and rates as Cinergy deems reasonable.
(34) any compensation previously deferred by the Executive (together with any accrued interest or earnings) and any accrued vacation pay, in each case to the extent not previously paid. The Accrued Obligations described in this Paragraph Section 5a(i) will be paid within thirty (30) days after the Date of Termination. These Accrued Obligations are payable to the Executive regardless of whether a Change in Control has occurred.
(ii) Prior In the event of a Qualifying Termination either prior to the occurrence of a Change in Control, and or more than twenty-four (24) months following the occurrence of a Change in the event of (A) a Termination other than by reason of the Executive's death, or (B) the Executive's termination of his employment during the Employment Period for Good ReasonControl, Cinergy will pay the Accrued Obligations, and Cinergy will have the following obligations:additional obligations described in this Section 5a(ii); provided, however, that each of the benefits described below in this Section 5a(ii) shall only be provided to the Executive if, upon presentation to the Executive following a Qualifying Termination, the Executive timely executes and does not timely revoke the Waiver and Release.
(1) Cinergy will pay to the Executive a lump sum amount, in cash, equal to three (3) times the sum of the Annual Base Salary and the AIP BenefitAnnual Bonus. For this purpose, the Annual Base Salary will be at the rate in effect at the time Notice of Termination is given (without giving effect to any reduction in Annual Base Salary, if any, prior to the termination, other than across-the-board reductions). The AIP Benefit will be determined using a percentage determined by , and shall include the Chief amount of any Nonelective Employer Contributions made on behalf of the Executive Officer, in his discretion, which will not be less than under the Executive's annual target percentage for 401(k) Excess Plan during the fiscal year in which the Executive’s Qualifying Termination occurs, and the Annual Bonus will be the higher of (A) the annual bonus earned by the Executive pursuant to any annual bonus or incentive plan maintained by Cinergy in respect of the year ending immediately prior to the fiscal year in which occurs the Date of Termination, and will (B) the annual bonus that would have been earned by the Executive pursuant to any annual bonus or incentive plan maintained by Cinergy in respect of the fiscal year in which occurs the Date of Termination, calculated by projecting Cinergy’s performance and other applicable goals and objectives for the entire fiscal year based on Cinergy’s performance during the period of such fiscal year occurring prior to the Date of Termination, and based on such other assumptions and rates as Cinergy deems reasonable; provided, however that for purposes of this Section 5a(ii)(1)(B), the Annual Bonus shall not be less than the Target Annual Bonus, nor greater than the maximum percentage specified Maximum Annual Bonus for the year in Subsection 3bwhich the Date of Termination occurs. This lump sum will be paid within thirty (30) days after the expiration of the Date of Terminationrevocation period contained in the Waiver and Release.
(2) Cinergy will pay Subject to the Executive the value of all deferred compensation amounts and all executive life insurance benefits whether or not they are otherwise currently vested or payable. Payment will be made in accordance with the terms of the applicable plan or program.
(3) Except as provided under Clauses (A), (B) and (BC) below, Cinergy will continueprovide, until the end of the Employment Period, medical and dental benefits to the Executive and/or the Executive's family ’s dependents at least equal to those that would have been provided if the Executive's ’s employment had not been terminated (excluding benefits to which the Executive has waived his rights in writing). The benefits described in the preceding sentence will be in accordance with the medical and welfare benefit plans, practices, programs, or policies of Cinergy (the "“M&W Plans"”) as then currently in effect and applicable generally to other Cinergy senior executives and their families. In the event that any medical or dental benefits or payments provided pursuant to this Section 5a(ii)(2)(B) are subject to federal, state, or local income or employment taxes, Cinergy shall provide the Executive with an additional payment in the amount necessary such that after payment by the Executive of all such taxes (calculated after assuming that the Executive pays such taxes for the year in which the payment or benefit occurs at the highest marginal tax rate applicable), including the taxes imposed on the additional payment, the Executive retains an amount equal to the medical or dental benefits or payments provided pursuant to this Section 5a(ii)(2)(B).
(A) If, as of the Executive's ’s Date of Termination, the Executive meets the eligibility requirements for Cinergy's ’s retiree medical and welfare benefit plans, the provision of those retiree medical and welfare benefit plans to the Executive will satisfy Cinergy's ’s obligation under this Subparagraph 5a(ii)(3Section 5a(ii)(2).
(B) If, as of the Executive's ’s Date of Termination, the provision to the Executive of the M&W Plan benefits described in this Subparagraph 5a(ii)(3Section 5a(ii)(2) would either (1) violate the terms of the M&W Plans (or any related insurance policies) or (2) violate any of the Code's ’s nondiscrimination requirements applicable to the M&W Plans, then Cinergy, in its sole discretion, may elect to pay the Executive, in lieu of the M&W Plan benefits described under this Subparagraph 5a(ii)(3Section 5a(ii)(2), a lump sum cash payment equal to the total monthly premiums (or in the case of a self funded plan, the cost of COBRA continuation coverage) that would have been paid by Cinergy for the Executive under the M&W Plans from the Date of Termination through the end of the Employment Period. Nothing in this Clause will affect the Executive's ’s right to elect COBRA continuation coverage under a M&W Plan in accordance with applicable law, and Cinergy will make the payment described in this Clause whether or not the Executive elects COBRA continuation coverage, and whether or not the Executive receives health coverage from another employer.
(C) If the Executive becomes employed by another employer and is eligible to receive medical or other welfare benefits under another employer-provided plan, any benefits provided to the Executive under the M&W Plans will be secondary to those provided under the other employer-provided plan during the Executive's ’s applicable period of eligibility.
(4) Ownership of the automobile assigned to the Executive by Cinergy will be transferred to the Executive within 30 days of the Date of Termination. The effect of this transfer will be grossed up for federal and state income taxes as soon as administratively feasible after the transfer is effective.
(53) Cinergy will provide pay the Executive a lump sum amount, in cash, equal to $15,000 in order to cover tax counseling services through an agency selected by the Executive. In the event any payment to the Executive pursuant to this Section 5a(ii)(3) is subject to any federal, not state, or local income or employment taxes, Cinergy shall provide to exceed Fifteen Thousand Dollars the Executive an additional payment in an amount necessary such that after payment by the Executive of all such taxes ($15,000.00calculated after assuming that the Executive pays such taxes for the year in which his Date of Termination occurs at the highest marginal tax rate applicable), including the taxes imposed on the additional payment, the Executive retains an amount equal to the payment provided pursuant to this Section 5a(ii)(3). Such payment will be transferred to the Executive within thirty (30) days of the expiration of the revocation period contained in costthe Waiver and Release.
(iii) In the event of a Qualifying Termination by Cinergy or by the Executive for Good Reason upon or during the twenty-four (24) month period after beginning upon the occurrence of a Change in Control, then Cinergy will pay the Accrued Obligations listed in lieu of any further salary payments to the Executive for periods subsequent to the Date of Termination Sections 5a(i)(1) and in lieu of any other benefits payable pursuant to Paragraph 5a(ii(2), Cinergy will pay the Accrued Obligations listed in Section 5a(i)(3) (but only if such Qualifying Termination occurs after the calendar year in which occurs such Change in Control) and Cinergy will have the following obligations:additional obligations described in this Section 5a(iii); provided, however, that each of the benefits described below in this Section 5a(iii) shall only be provided to the Executive if, upon presentation to the Executive following a Qualifying Termination, the Executive timely executes and does not timely revoke the Waiver and Release.
(1) Cinergy will pay to the Executive a lump sum severance payment, in cash, equal to the greater of:
(A) the present value of all amounts and benefits that would have been due under Paragraph 5a(ii), excluding Subparagraphs 5a(ii)(3), 5a(ii)(4), and 5a(ii)(5), or
(B) three (3) times the sum higher of (x) the higher sum of the Executive's ’s current Annual Base Salary and Target Annual Bonus and (y) the sum of the Executive’s Annual Base Salary in effect immediately prior to the occurrence Change in Control and the Change in Control Bonus. For purposes of the event preceding sentence, the Executive’s Annual Base Salary on any given date shall include the amount of any Nonelective Employer Contributions made on behalf of the Executive under the 401(k) Excess Plan during the fiscal year in which such date occurs. For purposes of this Agreement, the Change in Control Bonus shall mean the higher of (A) the annual bonus earned by the Executive pursuant to any annual bonus or circumstance upon which incentive plan maintained by Cinergy in respect of the Notice of Termination is based or in effect year ending immediately prior to the fiscal year in which occurs the Date of Termination or, if higher, immediately prior to the fiscal year in which occurs the Change in Control, and (yB) the higher of the amount paid to annual bonus that would have been earned by the Executive pursuant to all any annual bonus or incentive compensation or bonus plans or programs plan maintained by Cinergy in respect of the year preceding that in which occurs the Date of Termination, calculated by projecting Cinergy’s performance and other applicable goals and objective for the entire fiscal year based on Cinergy’s performance during the period of such fiscal year occurring prior to the Date of Termination, and based on such other assumptions and rates as Cinergy deems reasonable, provided, however, that for purposes of this Section 5a(iii)(1)(B), such Change in Control Bonus shall not be less than the Target Annual Bonus, nor greater than the Maximum Annual Bonus. This lump sum will be paid within thirty (30) days of the expiration of the revocation period contained in the Waiver and Release. Nothing in this Section 5a(iii)(1) shall preclude the Executive from receiving the amount, if any, to which he is entitled in accordance with the terms of the Annual Incentive Plan for the fiscal year that includes the Date of Termination.
(2) Cinergy will pay to the Executive the lump sum present value of any benefits under the Executive Supplemental Life Program under the terms of the applicable plan or program as of the Date of Termination, calculated as if the Executive was fully vested as of the Date of Termination. The lump sum present value, assuming commencement at age 50 or the Executive’s age as of the Date of Termination occurs or if later, will be determined using the interest rate applicable to lump sum payments in the Cinergy Corp. Non-Union Employees’ Pension Plan or any successor to that plan for the plan year that includes the Date of Termination. To the extent no such interest rate is provided therein, the annual interest rate applicable under Section 417(e)(3) of the Code, or any successor provision thereto, for the second full calendar month preceding the first day of the calendar year that includes the Date of Termination will be used. This lump sum will be paid within thirty (30) days of the expiration of the revocation period contained in which the Change in Control occurs; andWaiver and Release.
(23) The Executive shall be fully vested in his accrued benefits as of the Date of Termination under the Executive Retirement Plans, and his aggregate accrued benefits thereunder and under Section 3b(ii) of this Agreement will be calculated, and he will be treated for all purposes, as if he was credited with three (3) additional years of age and service as of the Date of Termination, provided, however, that to the extent a calculation is made regarding the actuarial equivalent amount of any alternate form of benefit, the Executive will not be credited with three additional years of age for purposes of such calculation. However, Cinergy will not commence payment of such benefits prior to the date that the Executive has attained, or is treated (after taking into account the preceding sentence) as if he had attained, age 50.
(4) For a thirty-six (36) month period after the Date of Termination, Cinergy will arrange to provide to the Executive with and/or the Executive’s dependents life, disability, accident, and health insurance benefits substantially similar to those that the Executive is and/or the Executive’s dependents are receiving immediately prior to the Notice of Termination at a substantially similar cost to the Executive (without giving effect to any reduction in those benefits subsequent to a Change in Control that constitutes Good Reason), except for any benefits that were waived by the Executive in writing. If Cinergy arranges to provide the Executive and/or the Executive’s dependents with life, disability, accident, and health insurance benefits, those benefits will be reduced to the extent comparable benefits are actually received by or made available to the Executive without cost and/or the Executive’s dependents during the thirty-six (36) month period following the Executive's ’s Date of Termination. The Executive must report to Cinergy any such benefits that he or his dependents actually receivesreceives or that are made available to him or his dependents. In lieu of the benefits described in the preceding sentences, Cinergy, in its sole discretion, may elect to pay to the Executive a lump sum cash payment equal to thirty-six (36) times the monthly premiums (or in the case of a self funded plan, the cost of COBRA continuation coverage) that would have been paid by Cinergy to provide those benefits to the Executive and/or the Executive’s dependents. Nothing in this Subparagraph 5a(iii)(2Section 5a(iii)(4) will affect the Executive's ’s right to elect COBRA continuation coverage in accordance with applicable law, and Cinergy will provide the benefits or make the payment described in this Clause whether or not the Executive elects COBRA continuation coverage, and whether or not the Executive receives health coverage from another employer. In the event that any benefits or payments provided pursuant to this Section 5a(iii)(4) are subject to federal, state, or local income or employment taxes, Cinergy shall provide the Executive with an additional payment in the amount necessary such that after payment by the Executive of all such taxes (calculated after assuming that the Executive pays such taxes for the year in which the payment or benefit occurs at the highest marginal tax rate applicable), including the taxes imposed on the additional payment, the Executive retains an amount equal to the benefits or payments provided pursuant to this Section 5a(iii)(4).
(35) Ownership In lieu of any and all other rights with respect to the automobile assigned by Cinergy to the Executive, Cinergy will provide the Executive with a lump sum payment in the amount of $50,000. In the event any payment to the Executive pursuant to this Section 5a(iii)(5) is subject to any federal, state, or local income or employment taxes, Cinergy shall provide to the Executive an additional payment in an amount necessary such that after payment by Cinergy the Executive of all such taxes (calculated after assuming that the Executive pays such taxes for the year in which his Date of Termination occurs at the highest marginal tax rate applicable), including the taxes imposed on the additional payment, the Executive retains an amount equal to the payment provided pursuant to this Section 5a(iii)(5). Such payment will be transferred to the Executive within 30 thirty (30) days of the Date expiration of Termination. The effect of this transfer will be grossed up for federal the revocation period contained in the Waiver and state income taxes as soon as administratively feasible after the transfer is effectiveRelease.
(46) Cinergy will provide pay the Executive a lump sum amount, in cash, equal to $15,000 in order to cover tax counseling services through an agency selected by the Executive, not to exceed Fifteen Thousand Dollars ($15,000.00) in cost. For purposes of this Paragraph (iii), In the Executive will be deemed to have incurred a Termination following a Change in Control if the Executive's employment is terminated prior to a Change in Control, without Cause at the direction of a Person who has entered into an agreement with Cinergy, the consummation of which will constitute a Change in Control, or if the Executive terminates his employment for Good Reason prior to a Change in Control if the circumstances or event that constitutes Good Reason occurs at the direction of such a Person.any
Appears in 4 contracts
Sources: Employment Agreement (Cincinnati Gas & Electric Co), Employment Agreement (Duke Energy CORP), Employment Agreement (Cincinnati Gas & Electric Co)
Certain Terminations. (i) If a Qualifying Termination occurs during the Employment Period, Cinergy will pay to the Executive a lump sum amount, in cash, equal to the sum of the following Accrued Obligations:
(1) the pro-rated portion of the Executive's Annual Base Salary payable through the Date of Termination Termination, to the extent not previously paid;.
(2) any amount payable to the Executive under the Annual Incentive Plan in respect of the most recently completed fiscal year, to the extent not theretofore paid.
(3) an amount equal to the AIP Benefit for the fiscal year that includes the Date of Termination multiplied by a fraction, the numerator of which is the number of days from the beginning of that fiscal year to and including the Date of Termination and the denominator of which is three hundred and sixty-five (365). The AIP Benefit component of the calculation will be determined using a percentage equal to the annual bonus that would have been earned by the Executive pursuant to any annual bonus or incentive plan maintained by Cinergy in respect of the fiscal year in which occurs the date of determination, determined by projecting Cinergy's performance and other applicable goals and objectives for the Chief Executive Officer, in his discretion, up entire fiscal year based on Cinergy's performance during the period of such fiscal year occurring prior to the maximum percentage specified in Subsection 3bDate of Termination, but no less than the Target Annual Bonusand based on such other assumptions and rates as Cinergy deems reasonable.
(34) any compensation previously deferred by the Executive (together with any accrued interest or earnings) and any accrued vacation pay, in each case to the extent not previously paid. The Accrued Obligations described in this Paragraph 5a(i) will be paid within thirty (30) days after the Date of Termination. These Accrued Obligations are payable to the Executive regardless of whether a Change in Control has occurred.
(ii) Prior In the event of a Qualifying Termination either prior to the occurrence of a Change in Control, and or more than twenty-four (24) months following the occurrence of a Change in the event of (A) a Termination other than by reason of the Executive's death, or (B) the Executive's termination of his employment during the Employment Period for Good ReasonControl, Cinergy will pay the Accrued Obligations, and Cinergy will have the following additional obligations:
(1) Cinergy will pay to the Executive a lump sum amount, in cash, equal to three (3) times the sum of the Annual Base Salary and the AIP BenefitAnnual Bonus. For this purpose, the Annual Base Salary will be at the rate in effect at the time Notice of Termination is given (without giving effect to any reduction in Annual Base Salary, if any, prior to the termination, other than across-the-board reductions). The AIP Benefit , and the Annual Bonus will be determined using a percentage determined the higher of (A) the annual bonus earned by the Chief Executive Officerpursuant to any annual bonus or incentive plan maintained by Cinergy in respect of the year ending immediately prior to the fiscal year in which occurs the Date of Termination, and (B) the annual bonus that would have been earned by the Executive pursuant to any annual bonus or incentive plan maintained by Cinergy in his discretionrespect of the fiscal year in which occurs the Date of Termination, which will calculated by projecting Cinergy's performance and other applicable goals and objectives for the entire fiscal year based on Cinergy's performance during the period of such fiscal year occurring prior to the Date of Termination, and based on such other assumptions and rates as Cinergy deems reasonable; provided, however that for purposes of this Subsection 5a(ii)(1)(B), the Annual Bonus shall not be less than the Executive's annual target percentage Annual Target Bonus, nor greater than the Maximum Target Bonus for the fiscal year in which the Date of Termination occurs and will not be greater than the maximum percentage specified in Subsection 3boccurs. This lump sum will be paid within thirty (30) days of the Date of Termination.
(2) Cinergy will pay Subject to the Executive the value of all deferred compensation amounts and all executive life insurance benefits whether or not they are otherwise currently vested or payable. Payment will be made in accordance with the terms of the applicable plan or program.
(3) Except as provided under Clauses (A), (B) and (BC) below, Cinergy will continueprovide, until the end of the Employment Period, medical and dental benefits to the Executive and/or the Executive's family dependents at least equal to those that would have been provided if the Executive's employment had not been terminated (excluding benefits to which the Executive has waived his rights in writing). The benefits described in the preceding sentence will be in accordance with the medical and welfare benefit plans, practices, programs, or policies of Cinergy (the "M&W Plans") as then currently in effect and applicable generally to other Cinergy senior executives and their families.
(A) If, as of the Executive's Date of Termination, the Executive meets the eligibility requirements for Cinergy's retiree medical and welfare benefit plans, the provision of those retiree medical and welfare benefit plans to the Executive will satisfy Cinergy's obligation under this Subparagraph 5a(ii)(35a(ii)(2).
(B) If, as of the Executive's Date of Termination, the provision to the Executive of the M&W Plan benefits described in this Subparagraph 5a(ii)(35a(ii)(2) would either (1) violate the terms of the M&W Plans (or any related insurance policies) or (2) violate any of the Code's nondiscrimination requirements applicable to the M&W Plans, then Cinergy, in its sole discretion, may elect to pay the Executive, in lieu of the M&W Plan benefits described under this Subparagraph 5a(ii)(35a(ii)(2), a lump sum cash payment equal to the total monthly premiums (or in the case of a self funded plan, the cost of COBRA continuation coverage) that would have been paid by Cinergy for the Executive under the M&W Plans from the Date of Termination through the end of the Employment Period, grossed up for the effect of federal, state and local income taxes. Nothing in this Clause will affect the Executive's right to elect COBRA continuation coverage under a M&W Plan in accordance with applicable law, and Cinergy will make the payment described in this Clause whether or not the Executive elects COBRA continuation coverage, and whether or not the Executive receives health coverage from another employer.
(C) If the Executive becomes employed by another employer and is eligible to receive medical or other welfare benefits under another employer-provided plan, any benefits provided to the Executive under the M&W Plans will be secondary to those provided under the other employer-provided plan during the Executive's applicable period of eligibility.
(4) Ownership of the automobile assigned to the Executive by Cinergy will be transferred to the Executive within 30 days of the Date of Termination. The effect of this transfer will be grossed up for federal and state income taxes as soon as administratively feasible after the transfer is effective.
(53) Cinergy will provide tax counseling services through an agency selected by the Executive, not to exceed Fifteen Thousand Dollars fifteen thousand dollars ($15,000.00) in cost.
(4) Title and ownership of the automobile assigned to the Executive by Cinergy will be transferred to the Executive within thirty (30) days of the Date of Termination. To the extent there is imputed income to the Executive resulting from the transfer of title, the Executive will receive a cash payment equal to the amount of federal, state and local income taxes resulting from this transfer as soon as administratively feasible after the transfer is effective. At Cinergy's discretion, a cash payment of an equivalent value of the automobile and corresponding income taxes may be paid in lieu of the assignment of the automobile.
(5) Cinergy will pay to the Executive the lump sum present value of any benefits under the Executive Supplemental Life Program under the terms of the applicable plan or program as of the Date of Termination, calculated as if the Executive was fully vested as of the Date of Termination. The lump sum present value, assuming commencement at age 50 or age as of the Date of Termination if later, will be determined using the interest rate applicable to lump sum payments in the Cinergy Corp. Non-Union Employees' Pension Plan or any successor to that plan for the plan year that includes the Date of Termination. To the extent no such interest rate is provided therein, the annual interest rate applicable under section 417(e)(3) of the Code, or any successor provision thereto, for the second full calendar month preceding the first day of the calendar year that includes the Date of Termination will be used. This lump sum will be paid within thirty (30) days of the Date of Termination.
(iii) In the event of a Qualifying Termination by Cinergy or by the Executive for Good Reason upon or during the twenty-four (24) month period after beginning upon the occurrence of a Change in Control, then in lieu of any further salary payments to the Executive for periods subsequent to the Date of Termination and in lieu of any other benefits payable pursuant to Paragraph 5a(ii), Cinergy will pay the Accrued Obligations, and Cinergy will also have the following additional obligations:
(1) Cinergy will pay to the Executive a lump sum severance payment, in cash, equal to the greater of:
(A) the present value of all amounts and benefits that would have been due under Paragraph 5a(ii), excluding Subparagraphs 5a(ii)(3), 5a(ii)(4), and 5a(ii)(5), or
(B) three (3) times the sum higher of (x) the higher sum of the Executive's current Annual Base Salary and Target Annual Bonus and (y) the sum of the Executive's Annual Base Salary in effect immediately prior to the occurrence Change in Control and the Change in Control Bonus. For purposes of this Agreement, the Change in Control Bonus shall mean the higher of (A) the annual bonus earned by the Executive pursuant to any annual bonus or incentive plan maintained by Cinergy in respect of the event or circumstance upon which the Notice of Termination is based or in effect year ending immediately prior to the fiscal year in which occurs the Date of Termination or, if higher, immediately prior to the fiscal year in which occurs the Change in Control, and (yB) the higher of the amount paid to annual bonus that would have been earned by the Executive pursuant to all any annual bonus or incentive compensation or bonus plans or programs plan maintained by Cinergy in respect of the year preceding that in which occurs the Date of Termination, calculated by projecting Cinergy's performance and other applicable goals and objective for the entire fiscal year based on Cinergy's performance during the period of such fiscal year occurring prior to the Date of Termination, and based on such other assumptions and rates as Cinergy deems reasonable, provided, however, that for purposes of this Subsection 5a(iii)(1)(B), such Change in Control Annual Bonus shall not be less than the Annual Target Bonus, nor greater than the Maximum Target Bonus. This lump sum will be paid within thirty (30) days of the Date of Termination.
(2) Cinergy will pay to the Executive the lump sum present value of any benefits under the Executive Supplemental Life Program under the terms of the applicable plan or program as of the Date of Termination, calculated as if the Executive was fully vested as of the Date of Termination. The lump sum present value, assuming commencement at age 50 or age as of the Date of Termination occurs or if later, will be determined using the interest rate applicable to lump sum payments in the Cinergy Corp. Non-Union Employees' Pension Plan or any successor to that plan for the plan year that includes the Date of Termination. To the extent no such interest rate is provided therein, the annual interest rate applicable under section 417(e)(3) of the Code, or any successor provision thereto, for the second full calendar month preceding the first day of the calendar year that in which includes the Change in Control occurs; andDate of Termination will be used. This lump sum will be paid within thirty (30) days of the Date of Termination.
(23) The Executive shall be fully vested in his accrued benefits as of the Date of Termination under the Executive Retirement Plans, and his accrued benefits thereunder will be calculated as if the Executive was credited with three (3) additional years of age and service as of the Date of Termination. However, Cinergy will not commence payment of such benefits until the Executive has attained age 50. For purposes of determining benefits under the Executive Retirement Plans, the definition of earnings will be the same as defined in such plans.
(4) For a thirty-six (36) month period after the Date of Termination, Cinergy will arrange to provide to the Executive with and/or the Executive's dependents life, disability, accident, and health insurance benefits substantially similar to those that the Executive is and/or the Executive's dependents are receiving immediately prior to the Notice of Termination at a substantially similar cost to the Executive (without giving effect to any reduction in those benefits subsequent to a Change in Control that constitutes Good Reason), except for any benefits that were waived by the Executive in writing. If Cinergy arranges to provide the Executive and/or the Executive's dependents with life, disability, accident, and health insurance benefits, those benefits will be reduced to the extent comparable benefits are actually received by or made available to the Executive without cost and/or the Executive's dependents during the thirty-six (36) month period following the Executive's Date of Termination. The Executive must report to Cinergy any such benefits that he or his dependents actually receives. In lieu of the benefits described in the preceding sentences, Cinergy, in its sole discretion, may elect to pay to the Executive a lump sum cash payment equal to thirty-six (36) times the monthly premiums (or in the case of a self funded plan, the cost of COBRA continuation coverage) that would have been paid by Cinergy to provide those benefits to the Executive and/or the Executive's dependents, grossed up for the effect of federal, state and local income taxes. Nothing in this Subparagraph 5a(iii)(25a(iii)(4) will affect the Executive's right to elect COBRA continuation coverage in accordance with applicable law, and Cinergy will make the payment described in this Clause whether or not the Executive elects COBRA continuation coverage, and whether or not the Executive receives health coverage from another employer.
(35) Ownership Title and ownership of the automobile assigned to the Executive by Cinergy will be transferred to the Executive within 30 thirty (30) days of the Date of Termination. The effect To the extent there is imputed income to the Executive resulting from the transfer of title, the Executive will receive a cash payment equal to the amount of federal, state and local income taxes resulting from this transfer will be grossed up for federal and state income taxes as soon as administratively feasible after the transfer is effective. At Cinergy's discretion, a cash payment of an equivalent value of the automobile and corresponding income taxes may be paid in lieu of the assignment of the automobile.
(46) Cinergy will provide tax counseling services through an agency selected by the Executive, not to exceed Fifteen Thousand Dollars fifteen thousand dollars ($15,000.00) in cost.
(7) Cinergy will provide annual dues and assessments of the Executive for membership in a country club selected by the Executive until the end of the Employment Period.
(8) Cinergy will provide outplacement services suitable to the Executive's position until the end of the Employment Period or, if earlier, until the first acceptance by the Executive of an offer of employment. At the Executive's discretion, 15% of Annual Base Salary may be paid in lieu of outplacement services. For purposes of this Paragraph (iii5a(iii), the Executive will be deemed to have incurred a Qualifying Termination following upon a Change in Control if the Executive's employment is terminated prior to a Change in Control, without Cause at the direction of a Person who has entered into an agreement with Cinergy, the consummation of which will constitute a Change in Control, or if the Executive terminates his employment for Good Reason prior to a Change in Control if the circumstances or event that constitutes Good Reason occurs at the direction of such a Person.
Appears in 2 contracts
Sources: Employment Agreement (Cinergy Corp), Employment Agreement (Psi Energy Inc)
Certain Terminations. (i) If a Qualifying Termination occurs during the Employment Period, Cinergy will pay to the Executive a lump sum amount, in cash, equal to the sum of the following Accrued Obligations:
(1) the pro-rated portion of the Executive's Annual Base Salary payable through the Date of Termination Termination, to the extent not previously paid;.
(2) any amount payable to the Executive under the Annual Incentive Plan in respect of the most recently completed fiscal year, to the extent not theretofore paid.
(3) an amount equal to the AIP Benefit for the fiscal year that includes the Date of Termination multiplied by a fraction, the numerator of which is the number of days from the beginning of that fiscal year to and including the Date of Termination and the denominator of which is three hundred and sixty-five (365). The AIP Benefit component of the calculation will be determined using a percentage equal to the annual bonus that would have been earned by the Executive pursuant to any annual bonus or incentive plan maintained by Cinergy in respect of the fiscal year in which occurs the date of determination, determined by projecting Cinergy's performance and other applicable goals and objectives for the Chief Executive Officer, in his discretion, up entire fiscal year based on Cinergy's performance during the period of such fiscal year occurring prior to the maximum percentage specified in Subsection 3bDate of Termination, but no less than the Target Annual Bonusand based on such other assumptions and rates as Cinergy deems reasonable.
(34) any compensation previously deferred by the Executive (together with any accrued interest or earnings) and any accrued vacation pay, in each case to the extent not previously paid. The Accrued Obligations described in this Paragraph 5a(i) will be paid within thirty (30) days after the Date of Termination. These Accrued Obligations are payable to the Executive regardless of whether a Change in Control has occurred.
(ii) Prior In the event of a Qualifying Termination either prior to the occurrence of a Change in Control, and or more than twenty-four (24) months following the occurrence of a Change in the event of (A) a Termination other than by reason of the Executive's death, or (B) the Executive's termination of his employment during the Employment Period for Good ReasonControl, Cinergy will pay the Accrued Obligations, and Cinergy will have the following additional obligations:
(1) Cinergy will pay to the Executive a lump sum amount, in cash, equal to three (3) times the sum of the Annual Base Salary and the AIP BenefitAnnual Bonus. For this purpose, the Annual Base Salary will be at the rate in effect at the time Notice of Termination is given (without giving effect to any reduction in Annual Base Salary, if any, prior to the termination, other than across-the-board reductions). The AIP Benefit , and the Annual Bonus will be determined using a percentage determined the higher of (A) the annual bonus earned by the Chief Executive Officerpursuant to any annual bonus or incentive plan maintained by Cinergy in respect of the year ending immediately prior to the fiscal year in which occurs the Date of Termination, and (B) the annual bonus that would have been earned by the Executive pursuant to any annual bonus or incentive plan maintained by Cinergy in his discretionrespect of the fiscal year in which occurs the Date of Termination, which will calculated by projecting Cinergy's performance and other applicable goals and objectives for the entire fiscal year based on Cinergy's performance during the period of such fiscal year occurring prior to the Date of Termination, and based on such other assumptions and rates as Cinergy deems reasonable; provided, however that for purposes of this Subsection 5a(ii)(1)(B), the Annual Bonus shall not be less than the Executive's annual target percentage Target Annual Bonus, nor greater than the Maximum Annual Bonus for the fiscal year in which the Date of Termination occurs and will not be greater than the maximum percentage specified in Subsection 3boccurs. This lump sum will be paid within thirty (30) days of the Date of Termination.
(2) Cinergy will pay Subject to the Executive the value of all deferred compensation amounts and all executive life insurance benefits whether or not they are otherwise currently vested or payable. Payment will be made in accordance with the terms of the applicable plan or program.
(3) Except as provided under Clauses (A), (B) and (BC) below, Cinergy will continueprovide, until the end of the Employment Period, medical and dental benefits to the Executive and/or the Executive's family dependents at least equal to those that would have been provided if the Executive's employment had not been terminated (excluding benefits to which the Executive has waived his rights in writing). The benefits described in the preceding sentence will be in accordance with the medical and welfare benefit plans, practices, programs, or policies of Cinergy (the "M&W Plans") as then currently in effect and applicable generally to other Cinergy senior executives and their families.
(A) If, as of the Executive's Date of Termination, the Executive meets the eligibility requirements for Cinergy's retiree medical and welfare benefit plans, the provision of those retiree medical and welfare benefit plans to the Executive will satisfy Cinergy's obligation under this Subparagraph 5a(ii)(35a(ii)(2).
(B) If, as of the Executive's Date of Termination, the provision to the Executive of the M&W Plan benefits described in this Subparagraph 5a(ii)(35a(ii)(2) would either (1) violate the terms of the M&W Plans (or any related insurance policies) or (2) violate any of the Code's nondiscrimination requirements applicable to the M&W Plans, then Cinergy, in its sole discretion, may elect to pay the Executive, in lieu of the M&W Plan benefits described under this Subparagraph 5a(ii)(35a(ii)(2), a lump sum cash payment equal to the total monthly premiums (or in the case of a self funded plan, the cost of COBRA continuation coverage) that would have been paid by Cinergy for the Executive under the M&W Plans from the Date of Termination through the end of the Employment Period, grossed up for the effect of federal, state and local income taxes. Nothing in this Clause will affect the Executive's right to elect COBRA continuation coverage under a M&W Plan in accordance with applicable law, and Cinergy will make the payment described in this Clause whether or not the Executive elects COBRA continuation coverage, and whether or not the Executive receives health coverage from another employer.
(C) If the Executive becomes employed by another employer and is eligible to receive medical or other welfare benefits under another employer-provided plan, any benefits provided to the Executive under the M&W Plans will be secondary to those provided under the other employer-provided plan during the Executive's applicable period of eligibility.
(4) Ownership of the automobile assigned to the Executive by Cinergy will be transferred to the Executive within 30 days of the Date of Termination. The effect of this transfer will be grossed up for federal and state income taxes as soon as administratively feasible after the transfer is effective.
(53) Cinergy will provide tax counseling services through an agency selected by the Executive, not to exceed Fifteen Thousand Dollars fifteen thousand dollars ($15,000.00) in cost.
(iii) In the event of a Qualifying Termination by Cinergy or by the Executive for Good Reason upon or during the twenty-four (24) month period after beginning upon the occurrence of a Change in Control, then in lieu of any further salary payments to the Executive for periods subsequent to the Date of Termination and in lieu of any other benefits payable pursuant to Paragraph 5a(ii), Cinergy will pay the Accrued Obligations, and Cinergy will also have the following additional obligations:
(1) Cinergy will pay to the Executive a lump sum severance payment, in cash, equal to the greater of:
(A) the present value of all amounts and benefits that would have been due under Paragraph 5a(ii), excluding Subparagraphs 5a(ii)(3), 5a(ii)(4), and 5a(ii)(5), or
(B) three (3) times the sum higher of (x) the higher sum of the Executive's current Annual Base Salary and Target Annual Bonus and (y) the sum of the Executive's Annual Base Salary in effect immediately prior to the occurrence Change in Control and the Change in Control Bonus. For purposes of this Agreement, the Change in Control Bonus shall mean the higher of (A) the annual bonus earned by the Executive pursuant to any annual bonus or incentive plan maintained by Cinergy in respect of the event or circumstance upon which the Notice of Termination is based or in effect year ending immediately prior to the fiscal year in which occurs the Date of Termination or, if higher, immediately prior to the fiscal year in which occurs the Change in Control, and (yB) the higher of the amount paid to annual bonus that would have been earned by the Executive pursuant to all any annual bonus or incentive compensation or bonus plans or programs plan maintained by Cinergy in respect of the year preceding that in which occurs the Date of Termination, calculated by projecting Cinergy's performance and other applicable goals and objective for the entire fiscal year based on Cinergy's performance during the period of such fiscal year occurring prior to the Date of Termination, and based on such other assumptions and rates as Cinergy deems reasonable, provided, however, that for purposes of this Subsection 5a(iii)(1)(B), such Change in Control Annual Bonus shall not be less than the Target Annual Bonus, nor greater than the Maximum Annual Bonus. This lump sum will be paid within thirty (30) days of the Date of Termination.
(2) Cinergy will pay to the Executive the lump sum present value of any benefits under the Executive Supplemental Life Program under the terms of the applicable plan or program as of the Date of Termination, calculated as if the Executive was fully vested as of the Date of Termination. The lump sum present value, assuming commencement at age 50 or age as of the Date of Termination occurs or if later, will be determined using the interest rate applicable to lump sum payments in the Cinergy Corp. Non-Union Employees' Pension Plan or any successor to that plan for the plan year that includes the Date of Termination. To the extent no such interest rate is provided therein, the annual interest rate applicable under section 417(e)(3) of the Code, or any successor provision thereto, for the second full calendar month preceding the first day of the calendar year that in which includes the Change in Control occurs; andDate of Termination will be used. This lump sum will be paid within thirty (30) days of the Date of Termination.
(23) The Executive shall be fully vested in his accrued benefits as of the Date of Termination under the Executive Retirement Plans, and his accrued benefits thereunder will be calculated as if the Executive was credited with three (3) additional years of age and service as of the Date of Termination. However, Cinergy will not commence payment of such benefits until the Executive has attained age 50. For purposes of determining benefits under the Executive Retirement Plans, the definition of earnings will be the same as defined in such plans.
(4) For a thirty-six (36) month period after the Date of Termination, Cinergy will arrange to provide to the Executive with and/or the Executive's dependents life, disability, accident, and health insurance benefits substantially similar to those that the Executive is and/or the Executive's dependents are receiving immediately prior to the Notice of Termination at a substantially similar cost to the Executive (without giving effect to any reduction in those benefits subsequent to a Change in Control that constitutes Good Reason), except for any benefits that were waived by the Executive in writing. If Cinergy arranges to provide the Executive and/or the Executive's dependents with life, disability, accident, and health insurance benefits, those benefits will be reduced to the extent comparable benefits are actually received by or made available to the Executive without cost and/or the Executive's dependents during the thirty-six (36) month period following the Executive's Date of Termination. The Executive must report to Cinergy any such benefits that he or his dependents actually receives. In lieu of the benefits described in the preceding sentences, Cinergy, in its sole discretion, may elect to pay to the Executive a lump sum cash payment equal to thirty-six (36) times the monthly premiums (or in the case of a self funded plan, the cost of COBRA continuation coverage) that would have been paid by Cinergy to provide those benefits to the Executive and/or the Executive's dependents, grossed up for the effect of federal, state and local income taxes. Nothing in this Subparagraph 5a(iii)(25a(iii)(4) will affect the Executive's right to elect COBRA continuation coverage in accordance with applicable law, and Cinergy will make the payment described in this Clause whether or not the Executive elects COBRA continuation coverage, and whether or not the Executive receives health coverage from another employer.
(35) Ownership Title and ownership of the automobile assigned to the Executive by Cinergy will be transferred to the Executive within 30 thirty (30) days of the Date of Termination. The effect To the extent there is imputed income to the Executive resulting from the transfer of title, the Executive will receive a cash payment equal to the amount of federal, state and local income taxes resulting from this transfer will be grossed up for federal and state income taxes as soon as administratively feasible after the transfer is effective. At Cinergy's discretion, a cash payment of an equivalent value of the automobile and corresponding income taxes may be paid in lieu of the assignment of the automobile.
(46) Cinergy will provide tax counseling services through an agency selected by the Executive, not to exceed Fifteen Thousand Dollars fifteen thousand dollars ($15,000.00) in cost.
(7) Cinergy will provide annual dues and assessments of the Executive for membership in a country club selected by the Executive until the end of the Employment Period.
(8) Cinergy will provide outplacement services suitable to the Executive's position until the end of the Employment Period or, if earlier, until the first acceptance by the Executive of an offer of employment. At the Executive's discretion, 15% of Annual Base Salary may be paid in lieu of outplacement services. For purposes of this Paragraph (iii5a(iii), the Executive will be deemed to have incurred a Qualifying Termination following upon a Change in Control if the Executive's employment is terminated prior to a Change in Control, without Cause at the direction of a Person who has entered into an agreement with Cinergy, the consummation of which will constitute a Change in Control, or if the Executive terminates his employment for Good Reason prior to a Change in Control if the circumstances or event that constitutes Good Reason occurs at the direction of such a Person.
Appears in 2 contracts
Sources: Employment Agreement (Psi Energy Inc), Employment Agreement (Cinergy Corp)
Certain Terminations. (i) If a Qualifying Termination occurs during the Employment Period, Cinergy will pay to the Executive a lump sum amount, in cash, equal to the sum of the following Accrued Obligations:
(1) the pro-rated portion of the Executive's ’s Annual Base Salary payable through the Date of Termination Termination, to the extent not previously paid;.
(2) any amount payable to the Executive under the Annual Incentive Plan in respect of the most recently completed fiscal year, to the extent not theretofore paid.
(3) an amount equal to the AIP Benefit for the fiscal year that includes the Date of Termination multiplied by a fraction, the numerator of which is the number of days from the beginning of that fiscal year to and including the Date of Termination and the denominator of which is three hundred and sixty-five (365). The AIP Benefit component of the calculation will be determined using a percentage equal to the annual bonus that would have been earned by the Executive pursuant to any annual bonus or incentive plan maintained by Cinergy in respect of the fiscal year in which occurs the Date of Termination, determined by projecting Cinergy’s performance and other applicable goals and objectives for the Chief Executive Officer, in his discretion, up entire fiscal year based on Cinergy’s performance during the period of such fiscal year occurring prior to the maximum percentage specified in Subsection 3bDate of Termination, but no less than the Target Annual Bonusand based on such other assumptions and rates as Cinergy deems reasonable.
(34) any compensation previously deferred by the Executive (together with any accrued interest or earnings) and any accrued vacation pay, in each case to the extent not previously paid. The Accrued Obligations described in this Paragraph Section 5a(i) will be paid within thirty (30) days after the Date of Termination. These Accrued Obligations are payable to the Executive regardless of whether a Change in Control has occurred.
(ii) Prior In the event of a Qualifying Termination either prior to the occurrence of a Change in Control, and or more than twenty-four (24) months following the occurrence of a Change in the event of (A) a Termination other than by reason of the Executive's death, or (B) the Executive's termination of his employment during the Employment Period for Good ReasonControl, Cinergy will pay the Accrued Obligations, and Cinergy will have the following obligations:additional obligations described in this Section 5a(ii); provided, however, that each of the benefits described below in this Section 5a(ii) shall only be provided to the Executive if, upon presentation to the Executive following a Qualifying Termination, the Executive timely executes and does not timely revoke the Waiver and Release.
(1) Cinergy will pay to the Executive a lump sum amount, in cash, equal to three (3) times the sum of the Annual Base Salary and the AIP BenefitAnnual Bonus. For this purpose, the Annual Base Salary will be at the rate in effect at the time Notice of Termination is given (without giving effect to any reduction in Annual Base Salary, if any, prior to the termination, other than across-the-board reductions). The AIP Benefit will be determined using a percentage determined by , and shall include the Chief amount of any Nonelective Employer Contributions made on behalf of the Executive Officer, in his discretion, which will not be less than under the Executive's annual target percentage for 401(k) Excess Plan during the fiscal year in which the Executive’s Qualifying Termination occurs, and the Annual Bonus will be the higher of (A) the annual bonus earned by the Executive pursuant to any annual bonus or incentive plan maintained by Cinergy in respect of the year ending immediately prior to the fiscal year in which occurs the Date of Termination, and will (B) the annual bonus that would have been earned by the Executive pursuant to any annual bonus or incentive plan maintained by Cinergy in respect of the fiscal year in which occurs the Date of Termination, calculated by projecting Cinergy’s performance and other applicable goals and objectives for the entire fiscal year based on Cinergy’s performance during the period of such fiscal year occurring prior to the Date of Termination, and based on such other assumptions and rates as Cinergy deems reasonable; provided, however that for purposes of this Section 5a(ii)(1)(B), the Annual Bonus shall not be less than the Target Annual Bonus, nor greater than the maximum percentage specified Maximum Annual Bonus for the year in Subsection 3bwhich the Date of Termination occurs. This lump sum will be paid within thirty (30) days after the expiration of the Date of Terminationrevocation period contained in the Waiver and Release.
(2) Cinergy will pay Subject to the Executive the value of all deferred compensation amounts and all executive life insurance benefits whether or not they are otherwise currently vested or payable. Payment will be made in accordance with the terms of the applicable plan or program.
(3) Except as provided under Clauses (A), (B) and (BC) below, Cinergy will continueprovide, until the end of the Employment Period, medical and dental benefits to the Executive and/or the Executive's family ’s dependents at least equal to those that would have been provided if the Executive's ’s employment had not been terminated (excluding benefits to which the Executive has waived his rights in writing). The benefits described in the preceding sentence will be in accordance with the medical and welfare benefit plans, practices, programs, or policies of Cinergy (the "“M&W Plans"”) as then currently in effect and applicable generally to other Cinergy senior executives and their families. In the event that any medical or dental benefits or payments provided pursuant to this Section 5a(ii)(2)(B) are subject to federal, state, or local income or employment taxes, Cinergy shall provide the Executive with an additional payment in the amount necessary such that after payment by the Executive of all such taxes (calculated after assuming that the Executive pays such taxes for the year in which the payment or benefit occurs at the highest marginal tax rate applicable), including the taxes imposed on the additional payment, the Executive retains an amount equal to the medical or dental benefits or payments provided pursuant to this Section 5a(ii)(2)(B).
(A) If, as of the Executive's ’s Date of Termination, the Executive meets the eligibility requirements for Cinergy's ’s retiree medical and welfare benefit plans, the provision of those retiree medical and welfare benefit plans to the Executive will satisfy Cinergy's ’s obligation under this Subparagraph 5a(ii)(3Section 5a(ii)(2).
(B) If, as of the Executive's ’s Date of Termination, the provision to the Executive of the M&W Plan benefits described in this Subparagraph 5a(ii)(3Section 5a(ii)(2) would either (1) violate the terms of the M&W Plans (or any related insurance policies) or (2) violate any of the Code's ’s nondiscrimination requirements applicable to the M&W Plans, then Cinergy, in its sole discretion, may elect to pay the Executive, in lieu of the M&W Plan benefits described under this Subparagraph 5a(ii)(3Section 5a(ii)(2), a lump sum cash payment equal to the total monthly premiums (or in the case of a self funded plan, the cost of COBRA continuation coverage) that would have been paid by Cinergy for the Executive under the M&W Plans from the Date of Termination through the end of the Employment Period. Nothing in this Clause will affect the Executive's ’s right to elect COBRA continuation coverage under a M&W Plan in accordance with applicable law, and Cinergy will make the payment described in this Clause whether or not the Executive elects COBRA continuation coverage, and whether or not the Executive receives health coverage from another employer.
(C) If the Executive becomes employed by another employer and is eligible to receive medical or other welfare benefits under another employer-provided plan, any benefits provided to the Executive under the M&W Plans will be secondary to those provided under the other employer-provided plan during the Executive's ’s applicable period of eligibility.
(4) Ownership of the automobile assigned to the Executive by Cinergy will be transferred to the Executive within 30 days of the Date of Termination. The effect of this transfer will be grossed up for federal and state income taxes as soon as administratively feasible after the transfer is effective.
(53) Cinergy will provide pay the Executive a lump sum amount, in cash, equal to $15,000 in order to cover tax counseling services through an agency selected by the Executive. In the event any payment to the Executive pursuant to this Section 5a(ii)(3) is subject to any federal, not state, or local income or employment taxes, Cinergy shall provide to exceed Fifteen Thousand Dollars the Executive an additional payment in an amount necessary such that after payment by the Executive of all such taxes ($15,000.00calculated after assuming that the Executive pays such taxes for the year in which his Date of Termination occurs at the highest marginal tax rate applicable), including the taxes imposed on the additional payment, the Executive retains an amount equal to the payment provided pursuant to this Section 5a(ii)(3). Such payment will be transferred to the Executive within thirty (30) days of the expiration of the revocation period contained in costthe Waiver and Release.
(iii) In the event of a Qualifying Termination by Cinergy or by the Executive for Good Reason upon or during the twenty-four (24) month period after beginning upon the occurrence of a Change in Control, then Cinergy will pay the Accrued Obligations listed in lieu of any further salary payments to the Executive for periods subsequent to the Date of Termination Sections 5a(i)(1) and in lieu of any other benefits payable pursuant to Paragraph 5a(ii(2), Cinergy will pay the Accrued Obligations listed in Section 5a(i)(3) (but only if such Qualifying Termination occurs after the calendar year in which occurs such Change in Control) and Cinergy will have the following obligations:additional obligations described in this Section 5a(iii); provided, however, that each of the benefits described below in this Section 5a(iii) shall only be provided to the Executive if, upon presentation to the Executive following a Qualifying Termination, the Executive timely executes and does not timely revoke the Waiver and Release.
(1) Cinergy will pay to the Executive a lump sum severance payment, in cash, equal to the greater of:
(A) the present value of all amounts and benefits that would have been due under Paragraph 5a(ii), excluding Subparagraphs 5a(ii)(3), 5a(ii)(4), and 5a(ii)(5), or
(B) three (3) times the sum higher of (x) the higher sum of the Executive's ’s current Annual Base Salary and Target Annual Bonus and (y) the sum of the Executive’s Annual Base Salary in effect immediately prior to the occurrence Change in Control and the Change in Control Bonus. For purposes of the event preceding sentence, the Executive’s Annual Base Salary on any given date shall include the amount of any Nonelective Employer Contributions made on behalf of the Executive under the 401(k) Excess Plan during the fiscal year in which such date occurs. For purposes of this Agreement, the Change in Control Bonus shall mean the higher of (A) the annual bonus earned by the Executive pursuant to any annual bonus or circumstance upon which incentive plan maintained by Cinergy in respect of the Notice of Termination is based or in effect year ending immediately prior to the fiscal year in which occurs the Date of Termination or, if higher, immediately prior to the fiscal year in which occurs the Change in Control, and (yB) the higher of the amount paid to annual bonus that would have been earned by the Executive pursuant to all any annual bonus or incentive compensation or bonus plans or programs plan maintained by Cinergy in respect of the year preceding that in which occurs the Date of Termination, calculated by projecting Cinergy’s performance and other applicable goals and objective for the entire fiscal year based on Cinergy’s performance during the period of such fiscal year occurring prior to the Date of Termination, and based on such other assumptions and rates as Cinergy deems reasonable, provided, however, that for purposes of this Section 5a(iii)(1)(B), such Change in Control Bonus shall not be less than the Target Annual Bonus, nor greater than the Maximum Annual Bonus. This lump sum will be paid within thirty (30) days of the expiration of the revocation period contained in the Waiver and Release. Nothing in this Section 5a(iii)(1) shall preclude the Executive from receiving the amount, if any, to which he is entitled in accordance with the terms of the Annual Incentive Plan for the fiscal year that includes the Date of Termination.
(2) Cinergy will pay to the Executive the lump sum present value of any benefits under the Executive Supplemental Life Program under the terms of the applicable plan or program as of the Date of Termination, calculated as if the Executive was fully vested as of the Date of Termination. The lump sum present value, assuming commencement at age 50 or the Executive’s age as of the Date of Termination occurs or if later, will be determined using the interest rate applicable to lump sum payments in the Cinergy Corp. Non-Union Employees’ Pension Plan or any successor to that plan for the plan year that includes the Date of Termination. To the extent no such interest rate is provided therein, the annual interest rate applicable under Section 417(e)(3) of the Code, or any successor provision thereto, for the second full calendar month preceding the first day of the calendar year that includes the Date of Termination will be used. This lump sum will be paid within thirty (30) days of the expiration of the revocation period contained in which the Change in Control occurs; andWaiver and Release.
(23) The Executive shall be fully vested in his accrued benefits as of the Date of Termination under the Executive Retirement Plans and the last three sentences of Section 3b(i) of this Agreement and, and his aggregate accrued benefits thereunder and under Section 3b(ii) of this Agreement will be calculated, and he will be treated for all purposes, as if he was credited with three (3) additional years of age and service as of the Date of Termination, provided, however, that to the extent a calculation is made regarding the actuarial equivalent amount of any alternate form of benefit, the Executive will not be credited with three additional years of age for purposes of such calculation. However, Cinergy will not commence payment of such benefits prior to the date that the Executive has attained, or is treated (after taking into account the preceding sentence) as if he had attained, age 50.
(4) For a thirty-six (36) month period after the Date of Termination, Cinergy will arrange to provide to the Executive with and/or the Executive’s dependents life, disability, accident, and health insurance benefits substantially similar to those that the Executive is and/or the Executive’s dependents are receiving immediately prior to the Notice of Termination at a substantially similar cost to the Executive (without giving effect to any reduction in those benefits subsequent to a Change in Control that constitutes Good Reason), except for any benefits that were waived by the Executive in writing. If Cinergy arranges to provide the Executive and/or the Executive’s dependents with life, disability, accident, and health insurance benefits, those benefits will be reduced to the extent comparable benefits are actually received by or made available to the Executive without cost and/or the Executive’s dependents during the thirty-six (36) month period following the Executive's ’s Date of Termination. The Executive must report to Cinergy any such benefits that he or his dependents actually receivesreceives or that are made available to him or his dependents. In lieu of the benefits described in the preceding sentences, Cinergy, in its sole discretion, may elect to pay to the Executive a lump sum cash payment equal to thirty-six (36) times the monthly premiums (or in the case of a self funded plan, the cost of COBRA continuation coverage) that would have been paid by Cinergy to provide those benefits to the Executive and/or the Executive’s dependents. Nothing in this Subparagraph 5a(iii)(2Section 5a(iii)(4) will affect the Executive's ’s right to elect COBRA continuation coverage in accordance with applicable law, and Cinergy will provide the benefits or make the payment described in this Clause whether or not the Executive elects COBRA continuation coverage, and whether or not the Executive receives health coverage from another employer. In the event that any benefits or payments provided pursuant to this Section 5a(iii)(4) are subject to federal, state, or local income or employment taxes, Cinergy shall provide the Executive with an additional payment in the amount necessary such that after payment by the Executive of all such taxes (calculated after assuming that the Executive pays such taxes for the year in which the payment or benefit occurs at the highest marginal tax rate applicable), including the taxes imposed on the additional payment, the Executive retains an amount equal to the benefits or payments provided pursuant to this Section 5a(iii)(4).
(35) Ownership In lieu of any and all other rights with respect to the automobile assigned by Cinergy to the Executive, Cinergy will provide the Executive with a lump sum payment in the amount of $50,000. In the event any payment to the Executive pursuant to this Section 5a(iii)(5) is subject to any federal, state, or local income or employment taxes, Cinergy shall provide to the Executive an additional payment in an amount necessary such that after payment by Cinergy the Executive of all such taxes (calculated after assuming that the Executive pays such taxes for the year in which his Date of Termination occurs at the highest marginal tax rate applicable), including the taxes imposed on the additional payment, the Executive retains an amount equal to the payment provided pursuant to this Section 5a(iii)(5). Such payment will be transferred to the Executive within 30 thirty (30) days of the Date expiration of Termination. The effect of this transfer will be grossed up for federal the revocation period contained in the Waiver and state income taxes as soon as administratively feasible after the transfer is effectiveRelease.
(46) Cinergy will provide pay the Executive a lump sum amount, in cash, equal to $15,000 in order to cover tax counseling services through an agency selected by the Executive, not to exceed Fifteen Thousand Dollars ($15,000.00) in cost. For purposes of this Paragraph (iii), the Executive will be deemed to have incurred a Termination following a Change in Control if the Executive's employment is terminated prior to a Change in Control, without Cause at the direction of a Person who has entered into an agreement with Cinergy, the consummation of which will constitute a Change in Control, or if the Executive terminates his employment for Good Reason prior to a Change in Control if the circumstances or event that constitutes Good Reason occurs at the direction of such a Person.se
Appears in 2 contracts
Sources: Employment Agreement (Duke Energy CORP), Employment Agreement (Psi Energy Inc)
Certain Terminations. (i) If a Qualifying Termination occurs during the Employment Period, Cinergy will pay to the Executive a lump sum amount, in cash, equal to the sum of the following Accrued Obligations:
(1) the pro-rated portion of the Executive's ’s Annual Base Salary payable through the Date of Termination Termination, to the extent not previously paid;.
(2) any amount payable to the Executive under the Annual Incentive Plan in respect of the most recently completed fiscal year, to the extent not theretofore paid.
(3) an amount equal to the AIP Benefit for the fiscal year that includes the Date of Termination multiplied by a fraction, the numerator of which is the number of days from the beginning of that fiscal year to and including the Date of Termination and the denominator of which is three hundred and sixty-five (365). The AIP Benefit component of the calculation will be determined using a percentage equal to the annual bonus that would have been earned by the Executive pursuant to any annual bonus or incentive plan maintained by Cinergy in respect of the fiscal year in which occurs the Date of Termination, determined by projecting Cinergy’s performance and other applicable goals and objectives for the Chief Executive Officer, in his discretion, up entire fiscal year based on Cinergy’s performance during the period of such fiscal year occurring prior to the maximum percentage specified in Subsection 3bDate of Termination, but no less than the Target Annual Bonusand based on such other assumptions and rates as Cinergy deems reasonable.
(34) any compensation previously deferred by the Executive (together with any accrued interest or earnings) and any accrued vacation pay, in each case to the extent not previously paid. The Accrued Obligations described in this Paragraph Section 5a(i) will be paid within thirty (30) days after the Date of Termination. These Accrued Obligations are payable to the Executive regardless of whether a Change in Control has occurred.
(ii) Prior In the event of a Qualifying Termination either prior to the occurrence of a Change in Control, and or more than twenty-four (24) months following the occurrence of a Change in the event of (A) a Termination other than by reason of the Executive's death, or (B) the Executive's termination of his employment during the Employment Period for Good ReasonControl, Cinergy will pay the Accrued Obligations, and Cinergy will have the following obligations:additional obligations described in this Section 5a(ii); provided, however, that each of the benefits described below in this Section 5a(ii) shall only be provided to the Executive if, upon presentation to the Executive following a Qualifying Termination, the Executive timely executes and does not timely revoke the Waiver and Release.
(1) Cinergy will pay to the Executive a lump sum amount, in cash, equal to three (3) times the sum of the Annual Base Salary and the AIP BenefitAnnual Bonus. For this purpose, the Annual Base Salary will be at the rate in effect at the time Notice of Termination is given (without giving effect to any reduction in Annual Base Salary, if any, prior to the termination, other than across-the-board reductions). The AIP Benefit , and the Annual Bonus will be determined using a percentage determined the higher of (A) the annual bonus earned by the Chief Executive Officerpursuant to any annual bonus or incentive plan maintained by Cinergy in respect of the year ending immediately prior to the fiscal year in which occurs the Date of Termination, and (B) the annual bonus that would have been earned by the Executive pursuant to any annual bonus or incentive plan maintained by Cinergy in his discretionrespect of the fiscal year in which occurs the Date of Termination, which will calculated by projecting Cinergy’s performance and other applicable goals and objectives for the entire fiscal year based on Cinergy’s performance during the period of such fiscal year occurring prior to the Date of Termination, and based on such other assumptions and rates as Cinergy deems reasonable; provided, however that for purposes of this Section 5a(ii)(1)(B), the Annual Bonus shall not be less than the Executive's annual target percentage Target Annual Bonus, nor greater than the Maximum Annual Bonus for the fiscal year in which the Date of Termination occurs and will not be greater than the maximum percentage specified in Subsection 3boccurs. This lump sum will be paid within thirty (30) days after the expiration of the Date of Terminationrevocation period contained in the Waiver and Release.
(2) With respect to each performance share award held by the Executive pursuant to the Value Creation Plan of the LTIP on the Date of Termination (collectively, the “Performance Share Awards”), Cinergy will pay to the Executive an amount, in cash, equal to the value excess (if any) of all deferred compensation amounts and all executive life insurance benefits whether or not they are otherwise currently vested or payable. Payment will be made in accordance with (i) the terms amount to which the Executive would have been entitled under each Performance Share Award if he had remained employed by Cinergy until the end of the applicable plan or programEmployment Period, over (ii) the amount to which he is actually entitled under such Performance Share Award. With respect to each Performance Share Award, such amount shall be paid to the Executive at the same time as other amounts are paid with respect to that Performance Share Award.
(3) Except as provided under Subject to Clauses (A), (B) and (BC) below, Cinergy will continueprovide, until the end of the Employment Period, medical and dental benefits to the Executive and/or the Executive's family ’s eligible dependents at least equal to those that would have been provided if the Executive's ’s employment had not been terminated (excluding benefits to which the Executive has waived his rights in writing). The benefits described in the preceding sentence will be in accordance with the medical and welfare benefit plans, practices, programs, or policies of Cinergy (the "“M&W Plans"”) as then currently in effect and applicable generally to other Cinergy senior executives and their families.
(A) If, as of the Executive's ’s Date of Termination, the Executive meets the eligibility requirements for Cinergy's ’s retiree medical and welfare benefit plans, the provision of those retiree medical and welfare benefit plans to the Executive will satisfy Cinergy's ’s obligation under this Subparagraph Section 5a(ii)(3).
(B) If, as of the Executive's ’s Date of Termination, the provision to the Executive of the M&W Plan benefits described in this Subparagraph Section 5a(ii)(3) would either (1) violate the terms of the M&W Plans (or any related insurance policies) or (2) violate any of the Code's ’s nondiscrimination requirements applicable to the M&W Plans, then Cinergy, in its sole discretion, may elect to pay the Executive, in lieu of the M&W Plan benefits described under this Subparagraph Section 5a(ii)(3), a lump sum cash payment equal to the total monthly premiums (or in the case of a self funded plan, the cost of COBRA continuation coverage) that would have been paid by Cinergy for the Executive under the M&W Plans from the Date of Termination through the end of the Employment Period. Nothing in this Clause will affect the Executive's ’s right to elect COBRA continuation coverage under a M&W Plan in accordance with applicable law, and Cinergy will make the payment described in this Clause whether or not the Executive elects COBRA continuation coverage, and whether or not the Executive receives health coverage from another employer.
(C) If the Executive becomes employed by another employer and is eligible to receive medical or other welfare benefits under another employer-provided plan, any benefits provided to the Executive under the M&W Plans will be secondary to those provided under the other employer-provided plan during the Executive's ’s applicable period of eligibility.
(4) Ownership of the automobile assigned to Cinergy will pay the Executive by Cinergy will be transferred a lump sum amount, in cash, equal to the Executive within 30 days of the Date of Termination. The effect of this transfer will be grossed up for federal and state income taxes as soon as administratively feasible after the transfer is effective.
(5) Cinergy will provide $15,000 in order to cover tax counseling services through an agency selected by the Executive. Such payment will be transferred to the Executive within thirty (30) days of the expiration of the revocation period contained in the Waiver and Release.
(5) In lieu of any and all other rights with respect to the automobile assigned by Cinergy to the Executive (or the equivalent cash allowance), not Cinergy will provide the Executive with a lump sum payment in the amount of $60,000. Such payment will be transferred to exceed Fifteen Thousand Dollars the Executive within thirty ($15,000.0030) days of the expiration of the revocation period contained in costthe Waiver and Release.
(iii) In the event of a Qualifying Termination by Cinergy or by the Executive for Good Reason upon or during the twenty-four (24) month period after beginning upon the occurrence of a Change in Control, then Cinergy will pay the Accrued Obligations listed in lieu of any further salary payments to the Executive for periods subsequent to the Date of Termination Sections 5a(i)(1) and in lieu of any other benefits payable pursuant to Paragraph 5a(ii(2), Cinergy will pay the Accrued Obligations listed in Section 5a(i)(3) (but only if such Qualifying Termination occurs after the calendar year in which occurs such Change in Control) and Cinergy will have the following obligations:additional obligations described in this Section 5a(iii); provided, however, that each of the benefits described below in this Section 5a(iii) shall only be provided to the Executive if, upon presentation to the Executive following a Qualifying Termination, the Executive timely executes and does not timely revoke the Waiver and Release.
(1) Cinergy will pay to the Executive a lump sum severance payment, in cash, equal to the greater of:
(A) the present value of all amounts and benefits that would have been due under Paragraph 5a(ii), excluding Subparagraphs 5a(ii)(3), 5a(ii)(4), and 5a(ii)(5), or
(B) three (3) times the sum higher of (x) the higher sum of the Executive's ’s current Annual Base Salary and Target Annual Bonus and (y) the sum of the Executive’s Annual Base Salary in effect immediately prior to the occurrence Change in Control and the Change in Control Bonus. For purposes of this Agreement, the Change in Control Bonus shall mean the higher of (A) the annual bonus earned by the Executive pursuant to any annual bonus or incentive plan maintained by Cinergy in respect of the event or circumstance upon which the Notice of Termination is based or in effect year ending immediately prior to the fiscal year in which occurs the Date of Termination or, if higher, immediately prior to the fiscal year in which occurs the Change in Control, and (yB) the higher of the amount paid to annual bonus that would have been earned by the Executive pursuant to all any annual bonus or incentive compensation or bonus plans or programs plan maintained by Cinergy in respect of the year preceding that in which occurs the Date of Termination, calculated by projecting Cinergy’s performance and other applicable goals and objective for the entire fiscal year based on Cinergy’s performance during the period of such fiscal year occurring prior to the Date of Termination, and based on such other assumptions and rates as Cinergy deems reasonable, provided, however, that for purposes of this Section 5a(iii)(1)(B), such Change in Control Bonus shall not be less than the Target Annual Bonus, nor greater than the Maximum Annual Bonus. This lump sum will be paid within thirty (30) days of the expiration of the revocation period contained in the Waiver and Release. Nothing in this Section 5a(iii)(1) shall preclude the Executive from receiving the amount, if any, to which he is entitled in accordance with the terms of the Annual Incentive Plan for the fiscal year that includes the Date of Termination.
(2) Cinergy will pay to the Executive the lump sum present value of any benefits under the Executive Supplemental Life Program under the terms of the applicable plan or program as of the Date of Termination, calculated as if the Executive was fully vested as of the Date of Termination. The lump sum present value, assuming commencement at the Executive’s age as of the Date of Termination, will be determined using the interest rate applicable to lump sum payments in the Cinergy Corp. Non-Union Employees’ Pension Plan or any successor to that plan for the plan year that includes the Date of Termination. To the extent no such interest rate is provided therein, the annual interest rate applicable under Section 417(e)(3) of the Code, or any successor provision thereto, for the second full calendar month preceding the first day of the calendar year that includes the Date of Termination occurs or will be used. This lump sum will be paid within thirty (30) days of the expiration of the revocation period contained in the year preceding that in which the Change in Control occurs; andWaiver and Release.
(23) The Executive shall be fully vested in his accrued benefits as of the Date of Termination under the Executive Retirement Plans, and his aggregate accrued benefits thereunder and under Section 3b(ii) of this Agreement will be calculated, and he will be treated for all purposes, as if he was credited with three (3) additional years of age and service as of the Date of Termination, provided, however, that to the extent a calculation is made regarding the actuarial equivalent amount of any alternate form of benefit, the Executive will not be credited with three additional years of age for purposes of such calculation.
(4) For a thirty-six (36) month period after the Date of Termination, Cinergy will arrange to provide to the Executive with and/or the Executive’s eligible dependents life, disability, accident, and health insurance benefits substantially similar to those that the Executive is and/or the Executive’s dependents are receiving immediately prior to the Notice of Termination at a substantially similar cost to the Executive (without giving effect to any reduction in those benefits subsequent to a Change in Control that constitutes Good Reason), except for any benefits that were waived by the Executive in writing. If Cinergy arranges to provide the Executive and/or the Executive’s dependents with life, disability, accident, and health insurance benefits, those benefits will be reduced to the extent comparable benefits are actually received by or made available to the Executive without cost and/or the Executive’s dependents during the thirty-six (36) month period following the Executive's ’s Date of Termination. The Executive must report to Cinergy any such benefits that he or his dependents actually receivesreceives or that are made available to him or his dependents. In lieu of the benefits described in the preceding sentences, Cinergy, in its sole discretion, may elect to pay to the Executive a lump sum cash payment equal to thirty-six (36) times the monthly premiums (or in the case of a self funded plan, the cost of COBRA continuation coverage) that would have been paid by Cinergy to provide those benefits to the Executive and/or the Executive’s dependents. Nothing in this Subparagraph 5a(iii)(2Section 5a(iii)(4) will affect the Executive's ’s right to elect COBRA continuation coverage in accordance with applicable law, and Cinergy will provide the benefits or make the payment described in this Clause whether or not the Executive elects COBRA continuation coverage, and whether or not the Executive receives health coverage from another employer.
(35) Ownership In lieu of any and all other rights with respect to the automobile assigned by Cinergy to the Executive by (or the equivalent cash allowance), Cinergy will provide the Executive with a lump sum payment in the amount of $60,000. Such payment will be transferred to the Executive within 30 thirty (30) days of the Date expiration of Termination. The effect of this transfer will be grossed up for federal the revocation period contained in the Waiver and state income taxes as soon as administratively feasible after the transfer is effectiveRelease.
(46) Cinergy will provide pay the Executive a lump sum amount, in cash, equal to $15,000 in order to cover tax counseling services through an agency selected by the Executive. Such payment will be transferred to the Executive within thirty (30) days of the expiration of the revocation period contained in the Waiver and Release.
(7) Cinergy will provide annual dues and assessments of the Executive for membership in a country club selected by the Executive until the end of the Employment Period. Such payment will be transferred to the Executive within thirty (30) days of the expiration of the revocation period contained in the Waiver and Release.
(8) Cinergy will provide outplacement services suitable to the Executive’s position until the end of the Employment Period; provided, not to however, that in no event shall the cost of such outplacement services exceed Fifteen Thousand Dollars ($15,000.00) in cost15% of the Executive’s Annual Base Salary. For purposes of this Paragraph (iiiSection 5a(iii), the Executive will be deemed to have incurred a Qualifying Termination following upon a Change in Control if the Executive's ’s employment is terminated prior to a Change in Control, without Cause at the direction of a Person who has entered into an agreement with Cinergy, the consummation of which will constitute a Change in Control, or if the Executive terminates his employment for Good Reason prior to a Change in Control if the circumstances or event that constitutes Good Reason occurs at the direction of such a Person.
Appears in 1 contract
Certain Terminations. During the Term, if the Corporation shall terminate the Executive’s employment other than for Cause or if the Executive shall terminate his employment for Constructive Termination, or if the Executive’s employment shall terminate by reason of death or Disability (termination in any such case referred to as “Termination”), then even though such Termination may result in the Executive taking retirement:
(i) If a Termination occurs during the Employment Period, Cinergy will The Corporation shall pay to the Executive a lump sum amount(or, in cashif applicable, equal to the sum of the following Accrued Obligations:
(1Executive’s beneficiary or estate) the Executive's ’s Annual Base Salary through the Date of Termination to the extent not previously theretofore paid;
, paid in the form of a lump sum within thirty days (230) days of after the Date of Termination. In addition, the Corporation shall pay to the Executive an amount equal to the AIP Benefit Executive’s annual incentive compensation (“Annual Incentive Compensation”), calculated in accordance with the provisions of the Corporation’s Economic Value Added Incentive Compensation Plan (“Annual Incentive Compensation Plan”) or successor or other similar plan or plans in effect from time to time; provided however, to the extent that the Executive would not be otherwise entitled to the Annual Incentive Compensation thereunder by reason of failing to remain employed with the Corporation until the date specified under the Annual Incentive Compensation Plan or failing to satisfy a specified attained age, service or similar requirement, then such requirement shall not provide a basis for forfeiture of payment for such fiscal year in which termination occurs. This amount will be paid at such time as amounts are regularly paid under the fiscal applicable plans but in no event later than March 15 of the year following the year that includes the Date of Termination, unless otherwise provided pursuant to the terms of applicable effective deferral elections; and
(ii) In the event of Termination multiplied by the Corporation other than for Cause or by the Executive for Constructive Termination, excluding Termination due to death or disability, then the Corporation shall continue for a fraction, the numerator period of which is the number of days ____________ (_) months from the beginning of that fiscal year to and including the Date of Termination life, accident and the denominator of which is three hundred and sixty-five (365). The AIP Benefit will be determined using a percentage determined by the Chief Executive Officer, in his discretion, up to the maximum percentage specified in Subsection 3b, but no less than the Target Annual Bonus.
(3) any compensation previously deferred by the Executive (together with any accrued interest or earnings) and any accrued vacation pay, in each case to the extent not previously paid. The Accrued Obligations described in this Paragraph 5a(i) will be paid within thirty (30) days after the Date of Termination. These Accrued Obligations are payable to the Executive regardless of whether a Change in Control has occurred.
(ii) Prior to the occurrence of a Change in Control, and in the event of (A) a Termination other than by reason of the Executive's death, or (B) the Executive's termination of his employment during the Employment Period for Good Reason, Cinergy will pay the Accrued Obligations, and Cinergy will have the following obligations:
(1) Cinergy will pay to the Executive a lump sum amount, in cash, equal to three (3) times the sum of the Annual Base Salary and the AIP Benefit. For this purpose, the Annual Base Salary will be at the rate in effect at the time Notice of Termination is given (without giving effect to any reduction in Annual Base Salary, if any, prior to the termination). The AIP Benefit will be determined using a percentage determined by the Chief Executive Officer, in his discretion, which will not be less than the Executive's annual target percentage for the fiscal year in which the Termination occurs and will not be greater than the maximum percentage specified in Subsection 3b. This lump sum will be paid within thirty (30) days of the Date of Termination.
(2) Cinergy will pay to the Executive the value of all deferred compensation amounts and all executive life health insurance benefits whether or not they are otherwise currently vested or payable. Payment will be made in accordance with the terms of the applicable plan or program.
(3) Except as provided under Clauses (A) and (B) below, Cinergy will continue, until the end of the Employment Period, medical and dental benefits to the Executive and/or the Executive's ’s family at least equal to those that would have been provided if the Executive's ’s employment had not been terminated (excluding terminated, such benefits to which the Executive has waived his rights in writing). The benefits described in the preceding sentence will be in accordance with the medical health and welfare benefit plans, practices, programs, programs or policies of Cinergy (the "M&W “H&W Plans"”) of the Corporation as then currently in effect and applicable generally to other Cinergy senior executives of the Corporation and their families.
(A) If, as of families immediately preceding the Executive's Date of Termination, which health benefits shall be provided through an arrangement that satisfies the Executive meets the eligibility requirements for Cinergy's retiree medical and welfare benefit plans, the provision of those retiree medical and welfare benefit plans to the Executive will satisfy Cinergy's obligation under this Subparagraph 5a(ii)(3).
(B) If, as of the Executive's Date of Termination, the provision to the Executive of the M&W Plan benefits described in this Subparagraph 5a(ii)(3) would either (1) violate the terms of the M&W Plans Section 105 or (2) violate any 106 of the Code's nondiscrimination requirements applicable to the M&W Plans; provided, then Cinergyhowever, in its sole discretion, may elect to pay the Executive, in lieu of the M&W Plan benefits described under this Subparagraph 5a(ii)(3), a lump sum cash payment equal to the total monthly premiums that would have been paid by Cinergy for the Executive under the M&W Plans from the Date of Termination through the end of the Employment Period. Nothing in this Clause will affect the Executive's right to elect COBRA continuation coverage under a M&W Plan in accordance with applicable law.
(C) If if the Executive becomes employed by with another employer and is eligible to receive medical receive, health or other similar welfare benefits under another employer-provided plan, any the benefits provided to the Executive under the M&W H&W Plans will be secondary to those provided under the other employer-provided plan during the Executive's applicable period of eligibility.
(4) Ownership of the automobile assigned to the Executive by Cinergy will be transferred to the Executive within 30 days of the Date of Termination. The effect of this transfer will be grossed up for federal and state income taxes as soon as administratively feasible after the transfer is effective.
(5) Cinergy will provide tax counseling services through an agency selected by the Executive, not to exceed Fifteen Thousand Dollars ($15,000.00) in cost.
(iii) In the event of Termination by Cinergy or by the Executive for Good Reason upon or during the twenty-four (24) month period after the occurrence of a Change in Control, then in lieu of any further salary payments to the Executive for periods subsequent to the Date of Termination and in lieu of any other benefits payable pursuant to Paragraph 5a(ii), Cinergy will have the following obligations:
(1) Cinergy will pay to the Executive a lump sum severance payment, in cash, equal to the greater of:
(A) the present value of all amounts and benefits that would have been due under Paragraph 5a(ii), excluding Subparagraphs 5a(ii)(3), 5a(ii)(4), and 5a(ii)(5), or
(B) three (3) times the sum of (x) the higher of the Executive's Annual Base Salary in effect immediately prior to the occurrence of the event or circumstance upon which the Notice of Termination is based or in effect immediately prior to the Change in Control, and (y) the higher of the amount paid to the Executive pursuant to all annual incentive compensation or bonus plans or programs maintained by Cinergy in the year preceding that in which the Date of Termination occurs or in the year preceding that in which the Change in Control occurs; and
(2) For a thirty-six (36) month period after the Date of Termination, Cinergy will arrange to provide the Executive with life, disability, accident, and health insurance benefits substantially similar to those that the Executive is receiving immediately prior to the Notice of Termination (without giving effect to any reduction in those benefits subsequent to a Change in Control that constitutes Good Reason), except for any benefits that were waived by the Executive in writing. If Cinergy arranges to provide the Executive with life, disability, accident, and health insurance benefits, those benefits will shall be reduced to the extent comparable benefits are actually received by or made available to the Executive without cost during the thirty-six ____________ (36_) month period following the Executive's ’s Date of Termination. The Executive must report to Cinergy Termination (and any such benefits that he actually receives. received by the Executive shall be reported to the Corporation by the Executive); and
(iii) In lieu the event of Termination by the Corporation other than for Cause or by the Executive for Constructive Termination, excluding Termination due to death or disability, then the Corporation shall tender to Executive the Release set forth in Exhibit 3(a)(iii) as soon as possible, but in no event later than three (3) days after Termination, with only such amendments as are required by law to carry out the provisions of the benefits described in Release. The Corporation shall give the preceding sentences, CinergyExecutive the time required by law to consider the Release. Executive understands and agrees that, in order to receive the lump sum amounts provided in this subsection 3(a)(iii), the Executive must execute the Release and allow the Release to become effective in its sole discretionentirety, may elect including but not limited to, claims under the Age Discrimination in Employment Act (“ADEA”). Upon receipt of the executed Release and the Release becoming fully effective with respect to the claims intended to be released thereby, including but not limited to claims under the ADEA, the Corporation shall five (5) days following the date that is six (6) months following the date after the Executive’s separation from service: (A) pay to the Executive a lump sum cash payment amount, in cash, equal to thirty-six ________ (36_) times the monthly premiums that would have been paid by Cinergy to provide those benefits to sum of (x) the Executive. Nothing ’s Annual Base Salary in this Subparagraph 5a(iii)(2) will affect the Executive's right effect immediately prior to elect COBRA continuation coverage in accordance with applicable law.
(3) Ownership of the automobile assigned to the Executive by Cinergy will be transferred to the Executive within 30 days of the Date of Termination. The , and (y) the Executive’s Annual Incentive Compensation, calculated based on the Target Incentive Percent, as defined in the Incentive Compensation Plan, established for the Executive, for the fiscal year in which the Date of Termination occurs; (B) also pay to the Executive the present value (discounted at an interest rate equal to the prime rate promulgated by J▇ ▇▇▇▇▇▇ C▇▇▇▇ Bank, N.A. or its successor and in effect as of this transfer will be grossed up the date of payment, plus one percent (1%) (the “Prime Rate”)) of all benefits under the Corporation’s Pension Plan for federal Salaried Employees, or any successor plan thereto and state income taxes as soon as administratively feasible after any supplemental executive retirement plans to which the transfer Executive would have been entitled had he remained in employment with the Corporation for an additional _________________________ (___) months, each, where applicable, at the rate of Annual Base Salary, and using the same assumptions and factors, in effect at the time Notice of Termination is effectivegiven, minus the present value (discounted at the Prime Rate) of the benefits to which he is actually entitled under the abovementioned plans.
(4iv) Cinergy will provide tax counseling services through an agency selected by the Executive, not Subject to exceed Fifteen Thousand Dollars ($15,000.00subsection 2(f) in cost. For purposes of this Paragraph (iii)hereof, the Corporation shall pay or otherwise perform its obligations to the Executive will be deemed under any benefit or other then-existing plan, policy, practice or program of the Corporation, including those related to, but not limited to, individual outplacement services in accordance with the general custom and practice generally accorded to have incurred a Termination following a Change in Control if the Executive's employment is terminated prior to a Change in Controlcomparably situated executives, without Cause at the direction of a Person who has severance compensation, vacation payments, stock options and deferred compensation, as well as under any contract or agreement entered into an agreement before or after the date hereof with Cinergy, the consummation of which will constitute a Change in Control, or if Corporation other than the Executive terminates his employment for Good Reason prior to a Change in Control if the circumstances or event that constitutes Good Reason occurs at the direction of such a PersonPrior Severance Benefit Agreement.
Appears in 1 contract
Certain Terminations. (i) If a Termination occurs during the Employment Period, Cinergy will pay to the Executive a lump sum amount, in cash, equal to the sum of the following Accrued Obligations:
(1) the Executive's Annual Base Salary through the Date of Termination to the extent not previously paid;
(2) an amount equal to the AIP Benefit for the fiscal year that includes the Date of Termination multiplied by a fraction, the numerator of which is the number of days from the beginning of that fiscal year to and including the Date of Termination and the denominator of which is three hundred and sixty-five (365). The AIP Benefit will be determined using a percentage determined by the Chief Executive Officer, in his discretion, up to the maximum percentage specified in Subsection 3b, but no less than the Target Annual Bonus.
(3) any compensation previously deferred by the Executive (together with any accrued interest or earnings) and any accrued vacation pay, in each case to the extent not previously paid. The Accrued Obligations described in this Paragraph 5a(i) will be paid within thirty (30) days after the Date of Termination. These Accrued Obligations are payable to the Executive regardless of whether a Change in Control has occurred.
(ii) Prior to the occurrence of a Change in Control, and in the event of (A) a Termination other than by reason of the Executive's death, or (B) the Executive's termination of his her employment during the Employment Period for Good Reason, Cinergy will pay the Accrued Obligations, and Cinergy will have the following obligations:
(1) Cinergy will pay to the Executive a lump sum amount, in cash, equal to three (3) times the sum of the Annual Base Salary and the AIP Benefit. For this purpose, the Annual Base Salary will be at the rate in effect at the time Notice of Termination is given (without giving effect to any reduction in Annual Base Salary, if any, prior to the termination). The AIP Benefit will be determined using a percentage determined by the Chief Executive Officer, in his discretion, which will not be less than the Executive's annual target percentage for the fiscal year in which the Termination occurs and will not be greater than the maximum percentage specified in Subsection 3b. This lump sum will be paid within thirty (30) days of the Date of Termination.
(2) Cinergy will pay to the Executive the value of all deferred compensation amounts and all executive life insurance benefits whether or not they are otherwise currently vested or payable. Payment will be made in accordance with the terms of the applicable plan or program.
(3) Except as provided under Clauses (A) and (B) below, Cinergy will continue, until the end of the Employment Period, medical and dental benefits to the Executive and/or the Executive's family at least equal to those that would have been provided if the Executive's employment had not been terminated (excluding benefits to which the Executive has waived his her rights in writing). The benefits described in the preceding sentence will be in accordance with the medical and welfare benefit plans, practices, programs, or policies of Cinergy (the "M&W Plans") as then currently in effect and applicable generally to other Cinergy senior executives and their families.
(A) If, as of the Executive's Date of Termination, the Executive meets the eligibility requirements for Cinergy's retiree medical and welfare benefit plans, the provision of those retiree medical and welfare benefit plans to the Executive will satisfy Cinergy's obligation under this Subparagraph 5a(ii)(3).
(B) If, as of the Executive's Date of Termination, the provision to the Executive of the M&W Plan benefits described in this Subparagraph 5a(ii)(3) would either (1) violate the terms of the M&W Plans or (2) violate any of the Code's nondiscrimination requirements applicable to the M&W Plans, then Cinergy, in its sole discretion, may elect to pay the Executive, in lieu of the M&W Plan benefits described under this Subparagraph 5a(ii)(3), a lump sum cash payment equal to the total monthly premiums that would have been paid by Cinergy for the Executive under the M&W Plans from the Date of Termination through the end of the Employment Period. Nothing in this Clause will affect the Executive's right to elect COBRA continuation coverage under a M&W Plan in accordance with applicable law.
(C) If the Executive becomes employed by another employer and is eligible to receive medical or other welfare benefits under another employer-provided plan, any benefits provided to the Executive under the M&W Plans will be secondary to those provided under the other employer-provided plan during the Executive's applicable period of eligibility.
(4) Ownership of the automobile assigned to the Executive by Cinergy will be transferred to the Executive within 30 days of the Date of Termination. The effect of this transfer will be grossed up for federal and state income taxes as soon as administratively feasible after the transfer is effective.
(5) Cinergy will provide tax counseling services through an agency selected by the Executive, not to exceed Fifteen Thousand Dollars ($15,000.00) in cost.
(iii) In the event of Termination by Cinergy or by the Executive for Good Reason upon or during the twenty-four (24) month period after the occurrence of a Change in Control, then in lieu of any further salary payments to the Executive for periods subsequent to the Date of Termination and in lieu of any other benefits payable pursuant to Paragraph 5a(ii), Cinergy will have the following obligations:
(1) Cinergy will pay to the Executive a lump sum severance payment, in cash, equal to the greater of:
(A) the present value of all amounts and benefits that would have been due under Paragraph 5a(ii), excluding Subparagraphs 5a(ii)(3), 5a(ii)(4), and 5a(ii)(5), or
(B) three (3) times the sum of (x) the higher of the Executive's Annual Base Salary in effect immediately prior to the occurrence of the event or circumstance upon which the Notice of Termination is based or in effect immediately prior to the Change in Control, and (y) the higher of the amount paid to the Executive pursuant to all annual incentive compensation or bonus plans or programs maintained by Cinergy in the year preceding that in which the Date of Termination occurs or in the year preceding that in which the Change in Control occurs; and
(2) For a thirty-six (36) month period after the Date of Termination, Cinergy will arrange to provide the Executive with life, disability, accident, and health insurance benefits substantially similar to those that the Executive is receiving immediately prior to the Notice of Termination (without giving effect to any reduction in those benefits subsequent to a Change in Control that constitutes Good Reason), except for any benefits that were waived by the Executive in writing. If Cinergy arranges to provide the Executive with life, disability, accident, and health insurance benefits, those benefits will be reduced to the extent comparable benefits are actually received by or made available to the Executive without cost during the thirty-six (36) month period following the Executive's Date of Termination. The Executive must report to Cinergy any such benefits that he she actually receives. In lieu of the benefits described in the preceding sentences, Cinergy, in its sole discretion, may elect to pay to the Executive a lump sum cash payment equal to thirty-six (36) times the monthly premiums that would have been paid by Cinergy to provide those benefits to the Executive. Nothing in this Subparagraph 5a(iii)(2) will affect the Executive's right to elect COBRA continuation coverage in accordance with applicable law.
(3) Ownership of the automobile assigned to the Executive by Cinergy will be transferred to the Executive within 30 days of the Date of Termination. The effect of this transfer will be grossed up for federal and state income taxes as soon as administratively feasible after the transfer is effective.
(4) Cinergy will provide tax counseling services through an agency selected by the Executive, not to exceed Fifteen Thousand Dollars ($15,000.00) in cost. For purposes of this Paragraph (iii), the Executive will be deemed to have incurred a Termination following a Change in Control if the Executive's employment is terminated prior to a Change in Control, without Cause at the direction of a Person who has entered into an agreement with Cinergy, the consummation of which will constitute a Change in Control, or if the Executive terminates his her employment for Good Reason prior to a Change in Control if the circumstances or event that constitutes Good Reason occurs at the direction of such a Person.
Appears in 1 contract
Certain Terminations. (i) If a Qualifying Termination occurs during the Employment Period, Cinergy will pay to the Executive a lump sum amount, in cash, equal to the sum of the following Accrued Obligations:
(1) the pro-rated portion of the Executive's ’s Annual Base Salary payable through the Date of Termination Termination, to the extent not previously paid;.
(2) any amount payable to the Executive under the Annual Incentive Plan in respect of the most recently completed fiscal year, to the extent not theretofore paid.
(3) an amount equal to the AIP Benefit for the fiscal year that includes the Date of Termination multiplied by a fraction, the numerator of which is the number of days from the beginning of that fiscal year to and including the Date of Termination and the denominator of which is three hundred and sixty-five (365). The AIP Benefit component of the calculation will be determined using a percentage equal to the annual bonus that would have been earned by the Executive pursuant to any annual bonus or incentive plan maintained by Cinergy in respect of the fiscal year in which occurs the Date of Termination, determined by projecting Cinergy’s performance and other applicable goals and objectives for the Chief Executive Officer, in his discretion, up entire fiscal year based on Cinergy’s performance during the period of such fiscal year occurring prior to the maximum percentage specified in Subsection 3bDate of Termination, but no less than the Target Annual Bonusand based on such other assumptions and rates as Cinergy deems reasonable.
(34) any compensation previously deferred by the Executive (together with any accrued interest or earnings) and any accrued vacation pay, in each case to the extent not previously paid. The Accrued Obligations described in this Paragraph Section 5a(i) will be paid within thirty (30) days after the Date of Termination. These Accrued Obligations are payable to the Executive regardless of whether a Change in Control has occurred.
(ii) Prior In the event of a Qualifying Termination either prior to the occurrence of a Change in Control, and or more than twenty-four (24) months following the occurrence of a Change in the event of (A) a Termination other than by reason of the Executive's death, or (B) the Executive's termination of his employment during the Employment Period for Good ReasonControl, Cinergy will pay the Accrued Obligations, and Cinergy will have the following obligations:additional obligations described in this Section 5a(ii); provided, however, that each of the benefits described below in this Section 5a(ii) shall only be provided to the Executive if, upon presentation to the Executive following a Qualifying Termination, the Executive timely executes and does not timely revoke the Waiver and Release.
(1) Cinergy will pay to the Executive a lump sum amount, in cash, equal to three two (32) times the sum of the Annual Base Salary and the AIP BenefitAnnual Bonus. For this purpose, the Annual Base Salary will be at the rate in effect at the time Notice of Termination is given (without giving effect to any reduction in Annual Base Salary, if any, prior to the termination, other than across-the-board reductions). The AIP Benefit will be determined using a percentage determined by , and shall include the Chief amount of any Nonelective Employer Contributions made on behalf of the Executive Officer, in his discretion, which will not be less than under the Executive's annual target percentage for 401(k) Excess Plan during the fiscal year in which the Executive’s Qualifying Termination occurs, and the Annual Bonus will be the higher of (A) the annual bonus earned by the Executive pursuant to any annual bonus or incentive plan maintained by Cinergy in respect of the year ending immediately prior to the fiscal year in which occurs the Date of Termination, and will (B) the annual bonus that would have been earned by the Executive pursuant to any annual bonus or incentive plan maintained by Cinergy in respect of the fiscal year in which occurs the Date of Termination, calculated by projecting Cinergy’s performance and other applicable goals and objectives for the entire fiscal year based on Cinergy’s performance during the period of such fiscal year occurring prior to the Date of Termination, and based on such other assumptions and rates as Cinergy deems reasonable; provided, however that for purposes of this Section 5a(ii)(1)(B), the Annual Bonus shall not be less than the Target Annual Bonus, nor greater than the maximum percentage specified Maximum Annual Bonus for the year in Subsection 3bwhich the Date of Termination occurs. This lump sum will be paid within thirty (30) days after the expiration of the Date of Terminationrevocation period contained in the Waiver and Release.
(2) Cinergy will pay Subject to the Executive the value of all deferred compensation amounts and all executive life insurance benefits whether or not they are otherwise currently vested or payable. Payment will be made in accordance with the terms of the applicable plan or program.
(3) Except as provided under Clauses (A), (B) and (BC) below, Cinergy will continueprovide, until the end of the Employment Period, medical and dental benefits to the Executive and/or the Executive's family ’s dependents at least equal to those that would have been provided if the Executive's ’s employment had not been terminated (excluding benefits to which the Executive has waived his her rights in writing). The benefits described in the preceding sentence will be in accordance with the medical and welfare benefit plans, practices, programs, or policies of Cinergy (the "“M&W Plans"”) as then currently in effect and applicable generally to other Cinergy senior executives and their families. In the event that any medical or dental benefits, or payments pursuant to Section 5a(ii)(2)(B), are subject to federal, state or local income taxes, Cinergy shall provide the Executive with an additional payment in the amount necessary such that after payment by the Executive of all such taxes, including the taxes imposed on the additional payment, the Executive retains an amount equal to the medical or dental benefits or payments pursuant to Section 5a(ii)(2)(B).
(A) If, as of the Executive's ’s Date of Termination, the Executive meets the eligibility requirements for Cinergy's ’s retiree medical and welfare benefit plans, the provision of those retiree medical and welfare benefit plans to the Executive will satisfy Cinergy's ’s obligation under this Subparagraph 5a(ii)(3Section 5a(ii)(2).
(B) If, as of the Executive's ’s Date of Termination, the provision to the Executive of the M&W Plan benefits described in this Subparagraph 5a(ii)(3Section 5a(ii)(2) would either (1) violate the terms of the M&W Plans (or any related insurance policies) or (2) violate any of the Code's ’s nondiscrimination requirements applicable to the M&W Plans, then Cinergy, in its sole discretion, may elect to pay the Executive, in lieu of the M&W Plan benefits described under this Subparagraph 5a(ii)(3Section 5a(ii)(2), a lump sum cash payment equal to the total monthly premiums (or in the case of a self funded plan, the cost of COBRA continuation coverage) that would have been paid by Cinergy for the Executive under the M&W Plans from the Date of Termination through the end of the Employment Period. Nothing in this Clause will affect the Executive's ’s right to elect COBRA continuation coverage under a M&W Plan in accordance with applicable law, and Cinergy will make the payment described in this Clause whether or not the Executive elects COBRA continuation coverage, and whether or not the Executive receives health coverage from another employer.
(C) If the Executive becomes employed by another employer and is eligible to receive medical or other welfare benefits under another employer-provided plan, any benefits provided to the Executive under the M&W Plans will be secondary to those provided under the other employer-provided plan during the Executive's ’s applicable period of eligibility.
(4) Ownership of the automobile assigned to the Executive by Cinergy will be transferred to the Executive within 30 days of the Date of Termination. The effect of this transfer will be grossed up for federal and state income taxes as soon as administratively feasible after the transfer is effective.
(53) Cinergy will provide pay the Executive a lump sum amount, in cash, equal to $15,000 in order to cover tax counseling services through an agency selected by the Executive, not which amount will be grossed-up to exceed Fifteen Thousand Dollars cover all applicable federal, state and local income and employment taxes, calculated after assuming that the Executive pays such taxes for the year in which her Date of Termination occurs at the highest marginal tax rate applicable. Such payment will be transferred to the Executive within thirty ($15,000.0030) days of the expiration of the revocation period contained in costthe Waiver and Release.
(iii) In the event of a Qualifying Termination by Cinergy or by the Executive for Good Reason upon or during the twenty-four (24) month period after beginning upon the occurrence of a Change in Control, then Cinergy will pay the Accrued Obligations listed in lieu of any further salary payments to the Executive for periods subsequent to the Date of Termination Sections 5a(i)(1) and in lieu of any other benefits payable pursuant to Paragraph 5a(ii(2), Cinergy will pay the Accrued Obligations listed in Section 5a(i)(3) (but only if such Qualifying Termination occurs after the calendar year in which occurs such Change in Control) and Cinergy will have the following obligations:additional obligations described in this Section 5a(iii); provided, however, that each of the benefits described below in this Section 5a(iii) shall only be provided to the Executive if, upon presentation to the Executive following a Qualifying Termination, the Executive timely executes and does not timely revoke the Waiver and Release.
(1) Cinergy will pay to the Executive a lump sum severance payment, in cash, equal to the greater of:
(A) the present value of all amounts and benefits that would have been due under Paragraph 5a(ii), excluding Subparagraphs 5a(ii)(3), 5a(ii)(4), and 5a(ii)(5), or
(B) three (3) times the sum higher of (x) the higher sum of the Executive's ’s current Annual Base Salary and Target Annual Bonus and (y) the sum of the Executive’s Annual Base Salary in effect immediately prior to the occurrence Change in Control and the Change in Control Bonus. For purposes of the event preceding sentence, the Executive’s Annual Base Salary on any given date shall include the amount of any Nonelective Employer Contributions made on behalf of the Executive under the 401(k) Excess Plan during the fiscal year in which such date occurs. For purposes of this Agreement, the Change in Control Bonus shall mean the higher of (A) the annual bonus earned by the Executive pursuant to any annual bonus or circumstance upon which incentive plan maintained by Cinergy in respect of the Notice of Termination is based or in effect year ending immediately prior to the fiscal year in which occurs the Date of Termination or, if higher, immediately prior to the fiscal year in which occurs the Change in Control, and (yB) the higher of the amount paid to annual bonus that would have been earned by the Executive pursuant to all any annual bonus or incentive compensation or bonus plans or programs plan maintained by Cinergy in respect of the year preceding that in which occurs the Date of Termination, calculated by projecting Cinergy’s performance and other applicable goals and objective for the entire fiscal year based on Cinergy’s performance during the period of such fiscal year occurring prior to the Date of Termination, and based on such other assumptions and rates as Cinergy deems reasonable, provided, however, that for purposes of this Section 5a(iii)(1)(B), such Change in Control Bonus shall not be less than the Target Annual Bonus, nor greater than the Maximum Annual Bonus. This lump sum will be paid within thirty (30) days of the expiration of the revocation period contained in the Waiver and Release. Nothing in this Section 5a(iii)(1) shall preclude the Executive from receiving the amount, if any, to which she is entitled in accordance with the terms of the Annual Incentive Plan for the fiscal year that includes the Date of Termination.
(2) Cinergy will pay to the Executive the lump sum present value of any benefits under the Executive Supplemental Life Program under the terms of the applicable plan or program as of the Date of Termination, calculated as if the Executive was fully vested as of the Date of Termination. The lump sum present value, assuming commencement at age 50 or the Executive’s age as of the Date of Termination occurs or if later, will be determined using the interest rate applicable to lump sum payments in the Cinergy Corp. Non-Union Employees’ Pension Plan or any successor to that plan for the plan year that includes the Date of Termination. To the extent no such interest rate is provided therein, the annual interest rate applicable under Section 417(e)(3) of the Code, or any successor provision thereto, for the second full calendar month preceding the first day of the calendar year that includes the Date of Termination will be used. This lump sum will be paid within thirty (30) days of the expiration of the revocation period contained in which the Change in Control occurs; andWaiver and Release.
(23) The Executive shall be fully vested in her accrued benefits as of the Date of Termination under the Executive Retirement Plans, and her aggregate accrued benefits thereunder will be calculated, and she will be treated for all purposes, as if she was credited with three (3) additional years of age and service as of the Date of Termination, provided, however, that to the extent a calculation is made regarding the actuarial equivalent amount of any alternate form of benefit, the Executive will not be credited with three additional years of age for purposes of such calculation. However, Cinergy will not commence payment of such benefits prior to the date that the Executive has attained, or is treated (after taking into account the preceding sentence) as if she had attained, age 50.
(4) For a thirty-six (36) month period after the Date of Termination, Cinergy will arrange to provide to the Executive with and/or the Executive’s dependents life, disability, accident, and health insurance benefits substantially similar to those that the Executive is and/or the Executive’s dependents are receiving immediately prior to the Notice of Termination at a substantially similar cost to the Executive (without giving effect to any reduction in those benefits subsequent to a Change in Control that constitutes Good Reason), except for any benefits that were waived by the Executive in writing. If Cinergy arranges to provide the Executive and/or the Executive’s dependents with life, disability, accident, and health insurance benefits, those benefits will be reduced to the extent comparable benefits are actually received by or made available to the Executive without cost and/or the Executive’s dependents during the thirty-six (36) month period following the Executive's ’s Date of Termination. The Executive must report to Cinergy any such benefits that he she or her dependents actually receivesreceives or that are made available to her or her dependents. In lieu of the benefits described in the preceding sentences, Cinergy, in its sole discretion, may elect to pay to the Executive a lump sum cash payment equal to thirty-six (36) times the monthly premiums (or in the case of a self funded plan, the cost of COBRA continuation coverage) that would have been paid by Cinergy to provide those benefits to the Executive and/or the Executive’s dependents. Nothing in this Subparagraph 5a(iii)(2Section 5a(iii)(4) will affect the Executive's ’s right to elect COBRA continuation coverage in accordance with applicable law, and Cinergy will provide the benefits or make the payment described in this Clause whether or not the Executive elects COBRA continuation coverage, and whether or not the Executive receives health coverage from another employer. In the event that any benefits or payments provided pursuant to this Section 5a(iii)(4) are subject to federal, state or local income taxes, Cinergy shall provide the Executive with an additional payment in the amount necessary such that after payment by the Executive of all such taxes, including taxes imposed on the additional payment, the Executive retains an amount equal to the benefit or payments provided in this Section 5a(iii)(4).
(35) Ownership In lieu of any and all other rights with respect to the automobile assigned by Cinergy to the Executive, Cinergy will provide the Executive by Cinergy with a lump sum payment in the amount of $35,000, which amount will be grossed-up to cover all applicable federal, state and local income and employment taxes, calculated after assuming that the Executive pays such taxes for the year in which her Date of Termination occurs at the highest marginal tax rate applicable. Such payment will be transferred to the Executive within 30 thirty (30) days of the Date expiration of Termination. The effect of this transfer will be grossed up for federal the revocation period contained in the Waiver and state income taxes as soon as administratively feasible after the transfer is effectiveRelease.
(46) Cinergy will provide pay the Executive a lump sum amount, in cash, equal to $15,000 in order to cover tax counseling services through an agency selected by the Executive, not which amount will be grossed-up to exceed Fifteen Thousand Dollars cover all applicable federal, state and local income and employment taxes, calculated after assuming that the Executive pays such taxes for the year in which her Date of Termination occurs at the highest marginal tax rate applicable. Such payment will be transferred to the Executive within thirty ($15,000.0030) days of the expiration of the revocation period contained in costthe Waiver and Release.
(7) Cinergy will provide annual dues and assessments of the Executive for membership in a country club selected by the Executive until the end of the Employment Period.
(8) Cinergy will provide outplacement services suitable to the Executive’s position until the end of the Employment Period or, if earlier, until the first acceptance by the Executive of an offer of employment. At the Executive’s discretion, 15% of Annual Base Salary may be paid in lieu of outplacement services, which payment will be transferred to the Executive within thirty (30) days of the expiration of the revocation period contained in the Waiver and Release. For purposes of this Paragraph (iiiSection 5a(iii), the Executive will be deemed to have incurred a Termination following a Change in Control if the Executive's employment is terminated prior to a Change in Control, without Cause at the direction of a Person who has entered into an agreement with Cinergy, the consummation of which will constitute a Change in Control, or if the Executive terminates his employment for Good Reason prior to a Change in Control if the circumstances or event that constitutes Good Reason occurs at the direction of such a Person.b
Appears in 1 contract
Certain Terminations. (i) If a Termination occurs during the Employment Period, Cinergy will pay to the Executive a lump sum amount, in cash, equal to the sum of the following Accrued Obligations:
(1) the Executive's Annual Base Salary through the Date of Termination to the extent not previously paid;
(2) an amount equal to the AIP Benefit for the fiscal year that includes the Date of Termination multiplied by a fraction, the numerator of which is the number of days from the beginning of that fiscal year to and including the Date of Termination and the denominator of which is three hundred and sixty-five (365). The AIP Benefit will be determined using a percentage determined by the Chief Executive Officer, in his discretion, up to the maximum percentage specified in Subsection 3b, but no less than the Target Annual Bonus.
(3) any compensation previously deferred by the Executive (together with any accrued interest or earnings) and any accrued vacation pay, in each case to the extent not previously paid. The Accrued Obligations described in this Paragraph 5a(i) will be paid within thirty (30) days after the Date of Termination. These Accrued Obligations are payable to the Executive regardless of whether a Change in Control has occurred.
(ii) Prior to the occurrence of a Change in Control, and in the event of (A) a Termination other than by reason of the Executive's death, or (B) the Executive's termination of his employment during the Employment Period for Good Reason, Cinergy will pay the Accrued Obligations, and Cinergy will have the following obligations:
(1) Cinergy will pay to the Executive a lump sum amount, in cash, equal to three (3) times the sum of the Annual Base Salary and the AIP Benefit. For this purpose, the Annual Base Salary will be at the rate in effect at the time Notice of Termination is given (without giving effect to any reduction in Annual Base Salary, if any, prior to the termination). The AIP Benefit will be determined using a percentage determined by the Chief Executive Officer, in his discretion, which will not be less than the Executive's annual target percentage for the fiscal year in which the Termination occurs and will not be greater than the maximum percentage specified in Subsection 3b. This lump sum will be paid within thirty (30) days of the Date of Termination.
(2) If the Executive terminates employment prior to reaching age 50, Cinergy will pay to the Executive the value of all deferred compensation amounts previously deferred by the Executive whether or not they are otherwise currently payable. Cinergy will also pay to the Executive the present value (discounted at the Prime Rate) of all amounts to which the Executive would have been entitled had he remained in employment with Cinergy until the end of the Employment Period under the Executive Supplemental Life Program. If the Executive terminates employment on or after reaching age 50, Cinergy will pay to the Executive the value of all deferred compensation amounts and all executive life insurance benefits whether or not they are otherwise currently vested or payable. Payment will be made in accordance with the terms of the applicable plan or program.
(3) Except as provided under Clauses (A) and (B) below, Cinergy will continue, until the end of the Employment Period, medical and dental benefits to the Executive and/or the Executive's family at least equal to those that would have been provided if the Executive's employment had not been terminated (excluding benefits to which the Executive has waived his rights in writing). The benefits described in the preceding sentence will be in accordance with the medical and welfare benefit plans, practices, programs, or policies of Cinergy (the "M&W Plans") as then currently in effect and applicable generally to other Cinergy senior executives and their families.
(A) If, as of the Executive's Date of Termination, the Executive meets the eligibility requirements for Cinergy's retiree medical and welfare benefit plans, the provision of those retiree medical and welfare benefit plans to the Executive will satisfy Cinergy's obligation under this Subparagraph 5a(ii)(3).
(B) If, as of the Executive's Date of Termination, the provision to the Executive of the M&W Plan benefits described in this Subparagraph 5a(ii)(3) would either (1) violate the terms of the M&W Plans or (2) violate any of the Code's nondiscrimination requirements applicable to the M&W Plans, then Cinergy, in its sole discretion, may elect to pay the Executive, in lieu of the M&W Plan benefits described under this Subparagraph 5a(ii)(35a(ii) (3), a lump sum cash payment equal to the total monthly premiums that would have been paid by Cinergy for the Executive under the M&W Plans from the Date of Termination through the end of the Employment Period. Nothing in this Clause will affect the Executive's right to elect COBRA continuation coverage under a M&W Plan in accordance with applicable law.
(C) If the Executive becomes employed by another employer and is eligible to receive medical or other welfare benefits under another employer-provided plan, any benefits provided to the Executive under the M&W Plans will be secondary to those provided under the other employer-provided plan during the Executive's applicable period of eligibility.
(4) Ownership of the automobile assigned to the Executive by Cinergy will be transferred to the Executive within 30 days of the Date of Termination. The effect of this transfer will be grossed up for federal and state income taxes as soon as administratively feasible after the transfer is effective.
(5) Cinergy will provide tax counseling services through an agency selected by the Executive, not to exceed Fifteen Thousand Dollars ($15,000.00) in cost.
(iii) In the event of Termination by Cinergy or by the Executive for Good Reason upon or during the twenty-four (24) month period after the occurrence of a Change in Control, then in lieu of any further salary payments to the Executive for periods subsequent to the Date of Termination and in lieu of any other benefits payable pursuant to Paragraph 5a(ii), Cinergy will have the following obligations:
(1) Cinergy will pay to the Executive a lump sum severance payment, in cash, equal to the greater of:
(A) the present value of all amounts and benefits that would have been due under Paragraph 5a(ii), excluding Subparagraphs 5a(ii)(3), 5a(ii)(4), and 5a(ii)(5), or
(B) three (3) times the sum of (x) the higher of the Executive's Annual Base Salary in effect immediately prior to the occurrence of the event or circumstance upon which the Notice of Termination is based or in effect immediately prior to the Change in Control, and (y) the higher of the amount paid to the Executive pursuant to all annual incentive compensation or bonus plans or programs maintained by Cinergy in the year preceding that in which the Date of Termination occurs or in the year preceding that in which the Change in Control occurs; and
(2) For a thirty-six (36) month period after the Date of Termination, Cinergy will arrange to provide the Executive with life, disability, accident, and health insurance benefits substantially similar to those that the Executive is receiving immediately prior to the Notice of Termination (without giving effect to any reduction in those benefits subsequent to a Change in Control that constitutes Good Reason), except for any benefits that were waived by the Executive in writing. If Cinergy arranges to provide the Executive with life, disability, accident, and health insurance benefits, those benefits will be reduced to the extent comparable benefits are actually received by or made available to the Executive without cost during the thirty-six (36) month period following the Executive's Date of Termination. The Executive must report to Cinergy any such benefits that he actually receives. In lieu of the benefits described in the preceding sentences, Cinergy, in its sole discretion, may elect to pay to the Executive a lump sum cash payment equal to thirty-six (36) times the monthly premiums that would have been paid by Cinergy to provide those benefits to the Executive. Nothing in this Subparagraph 5a(iii)(2) will affect the Executive's right to elect COBRA continuation coverage in accordance with applicable law.
(3) Ownership of the automobile assigned to the Executive by Cinergy will be transferred to the Executive within 30 days of the Date of Termination. The effect of this transfer will be grossed up for federal and state income taxes as soon as administratively feasible after the transfer is effective.
(4) Cinergy will provide tax counseling services through an agency selected by the Executive, not to exceed Fifteen Thousand Dollars ($15,000.00) in cost. For purposes of this Paragraph (iii), the Executive will be deemed to have incurred a Termination following a Change in Control if the Executive's employment is terminated prior to a Change in Control, without Cause at the direction of a Person who has entered into an agreement with Cinergy, the consummation of which will constitute a Change in Control, or if the Executive terminates his employment for Good Reason prior to a Change in Control if the circumstances or event that constitutes Good Reason occurs at the direction of such a Person.
Appears in 1 contract
Certain Terminations. (i) If a Qualifying Termination occurs during the Employment Period, Cinergy will pay to the Executive a lump sum amount, in cash, equal to the sum of the following Accrued Obligations:
(1) the pro-rated portion of the Executive's ’s Annual Base Salary payable through the Date of Termination Termination, to the extent not previously paid;.
(2) any amount payable to the Executive under the Annual Incentive Plan in respect of the most recently completed fiscal year, to the extent not theretofore paid.
(3) an amount equal to the AIP Benefit for the fiscal year that includes the Date of Termination multiplied by a fraction, the numerator of which is the number of days from the beginning of that fiscal year to and including the Date of Termination and the denominator of which is three hundred and sixty-five (365). The AIP Benefit component of the calculation will be determined using a percentage equal to the annual bonus that would have been earned by the Executive pursuant to any annual bonus or incentive plan maintained by Cinergy in respect of the fiscal year in which occurs the Date of Termination, determined by projecting Cinergy’s performance and other applicable goals and objectives for the Chief Executive Officer, in his discretion, up entire fiscal year based on Cinergy’s performance during the period of such fiscal year occurring prior to the maximum percentage specified in Subsection 3bDate of Termination, but no less than the Target Annual Bonusand based on such other assumptions and rates as Cinergy deems reasonable.
(34) any compensation previously deferred by the Executive (together with any accrued interest or earnings) and any accrued vacation pay, in each case to the extent not previously paid. The Accrued Obligations described in this Paragraph Section 5a(i) will be paid within thirty (30) days after the Date of Termination. These Accrued Obligations are payable to the Executive regardless of whether a Change in Control has occurred.
(ii) Prior In the event of a Qualifying Termination either prior to the occurrence of a Change in Control, and or more than twenty-four (24) months following the occurrence of a Change in the event of (A) a Termination other than by reason of the Executive's death, or (B) the Executive's termination of his employment during the Employment Period for Good ReasonControl, Cinergy will pay the Accrued Obligations, and Cinergy will have the following obligations:additional obligations described in this Section 5a(ii); provided, however, that each of the benefits described below in this Section 5a(ii) shall only be provided to the Executive if, upon presentation to the Executive following a Qualifying Termination, the Executive timely executes and does not timely revoke the Waiver and Release.
(1) Cinergy will pay to the Executive a lump sum amount, in cash, equal to three (3) times the sum of the Annual Base Salary and the AIP Benefit. For this purpose, the Annual Base Salary will be at the rate in effect at the time Notice of Termination is given (without giving effect to any reduction in Annual Base Salary, if any, prior to the termination). The AIP Benefit will be determined using a percentage determined by the Chief Executive Officer, in his discretion, which will not be less than the Executive's annual target percentage for the fiscal year in which the Termination occurs and will not be greater than the maximum percentage specified in Subsection 3b. This lump sum will be paid within thirty (30) days of the Date of Termination.
(2) Cinergy will pay to the Executive the value of all deferred compensation amounts and all executive life insurance benefits whether or not they are otherwise currently vested or payable. Payment will be made in accordance with the terms of the applicable plan or program.
(3) Except as provided under Clauses (A) and (B) below, Cinergy will continue, until the end of the Employment Period, medical and dental benefits to the Executive and/or the Executive's family at least equal to those that would have been provided if the Executive's employment had not been terminated (excluding benefits to which the Executive has waived his rights in writing). The benefits described in the preceding sentence will be in accordance with the medical and welfare benefit plans, practices, programs, or policies of Cinergy (the "M&W Plans") as then currently in effect and applicable generally to other Cinergy senior executives and their families.
(A) If, as of the Executive's Date of Termination, the Executive meets the eligibility requirements for Cinergy's retiree medical and welfare benefit plans, the provision of those retiree medical and welfare benefit plans to the Executive will satisfy Cinergy's obligation under this Subparagraph 5a(ii)(3).
(B) If, as of the Executive's Date of Termination, the provision to the Executive of the M&W Plan benefits described in this Subparagraph 5a(ii)(3) would either (1) violate the terms of the M&W Plans or (2) violate any of the Code's nondiscrimination requirements applicable to the M&W Plans, then Cinergy, in its sole discretion, may elect to pay the Executive, in lieu of the M&W Plan benefits described under this Subparagraph 5a(ii)(3), a lump sum cash payment equal to the total monthly premiums that would have been paid by Cinergy for the Executive under the M&W Plans from the Date of Termination through the end of the Employment Period. Nothing in this Clause will affect the Executive's right to elect COBRA continuation coverage under a M&W Plan in accordance with applicable law.
(C) If the Executive becomes employed by another employer and is eligible to receive medical or other welfare benefits under another employer-provided plan, any benefits provided to the Executive under the M&W Plans will be secondary to those provided under the other employer-provided plan during the Executive's applicable period of eligibility.
(4) Ownership of the automobile assigned to the Executive by Cinergy will be transferred to the Executive within 30 days of the Date of Termination. The effect of this transfer will be grossed up for federal and state income taxes as soon as administratively feasible after the transfer is effective.
(5) Cinergy will provide tax counseling services through an agency selected by the Executive, not to exceed Fifteen Thousand Dollars ($15,000.00) in cost.
(iii) In the event of Termination by Cinergy or by the Executive for Good Reason upon or during the twenty-four (24) month period after the occurrence of a Change in Control, then in lieu of any further salary payments to the Executive for periods subsequent to the Date of Termination and in lieu of any other benefits payable pursuant to Paragraph 5a(ii), Cinergy will have the following obligations:
(1) Cinergy will pay to the Executive a lump sum severance payment, in cash, equal to the greater of:
(A) the present value of all amounts and benefits that would have been due under Paragraph 5a(ii), excluding Subparagraphs 5a(ii)(3), 5a(ii)(4), and 5a(ii)(5), or
(B) three (3) times the sum of (x) the higher of the Executive's Annual Base Salary in effect immediately prior to the occurrence of the event or circumstance upon which the Notice of Termination is based or in effect immediately prior to the Change in Control, and (y) the higher of the amount paid to the Executive pursuant to all annual incentive compensation or bonus plans or programs maintained by Cinergy in the year preceding that in which the Date of Termination occurs or in the year preceding that in which the Change in Control occurs; and
(2) For a thirty-six (36) month period after the Date of Termination, Cinergy will arrange to provide the Executive with life, disability, accident, and health insurance benefits substantially similar to those that the Executive is receiving immediately prior to the Notice of Termination (without giving effect to any reduction in those benefits subsequent to a Change in Control that constitutes Good Reason), except for any benefits that were waived by the Executive in writing. If Cinergy arranges to provide the Executive with life, disability, accident, and health insurance benefits, those benefits will be reduced to the extent comparable benefits are actually received by or made available to the Executive without cost during the thirty-six (36) month period following the Executive's Date of Termination. The Executive must report to Cinergy any such benefits that he actually receives. In lieu of the benefits described in the preceding sentences, Cinergy, in its sole discretion, may elect to pay to the Executive a lump sum cash payment equal to thirty-six (36) times the monthly premiums that would have been paid by Cinergy to provide those benefits to the Executive. Nothing in this Subparagraph 5a(iii)(2) will affect the Executive's right to elect COBRA continuation coverage in accordance with applicable law.
(3) Ownership of the automobile assigned to the Executive by Cinergy will be transferred to the Executive within 30 days of the Date of Termination. The effect of this transfer will be grossed up for federal and state income taxes as soon as administratively feasible after the transfer is effective.
(4) Cinergy will provide tax counseling services through an agency selected by the Executive, not to exceed Fifteen Thousand Dollars ($15,000.00) in cost. For purposes of this Paragraph (iii), the Executive will be deemed to have incurred a Termination following a Change in Control if the Executive's employment is terminated prior to a Change in Control, without Cause at the direction of a Person who has entered into an agreement with Cinergy, the consummation of which will constitute a Change in Control, or if the Executive terminates his employment for Good Reason prior to a Change in Control if the circumstances or event that constitutes Good Reason occurs at the direction of such a Person.the
Appears in 1 contract
Sources: Employment Agreement (Cincinnati Gas & Electric Co)
Certain Terminations. (ia) If a Termination occurs during the Employment Period, Cinergy will pay prior to the Executive a lump sum amount, in cash, equal to the sum expiration of the following Accrued Obligations:
(1) the Executive's Annual Base Salary through the Date of Termination to the extent not previously paid;
(2) an amount equal to the AIP Benefit for the fiscal year that includes the Date of Termination multiplied by a fraction, the numerator of which is the number of days from the beginning of that fiscal year to Term and including the Date of Termination and the denominator of which is three hundred and sixty-five (365). The AIP Benefit will be determined using a percentage determined by the Chief Executive Officer, in his discretion, up to the maximum percentage specified in Subsection 3b, but no less than the Target Annual Bonus.
(3) any compensation previously deferred by the Executive (together with any accrued interest or earnings) and any accrued vacation pay, in each case to the extent not previously paid. The Accrued Obligations described in this Paragraph 5a(i) will be paid within thirty (30) days after the Date of Termination. These Accrued Obligations are payable to the Executive regardless of whether a Change in Control has occurred.
(ii) Prior prior to the occurrence of a Change in Control, as defined hereafter, the Executive's employment is terminated (i) by the Corporation without cause or (ii) by Executive for good reason if, (x) the nature and scope of Executive's duties or responsibilities with the Corporation are materially reduced from that which he enjoyed immediately prior thereto, (y) the Corporation's notice of nonrenewal of this Agreement, or (z) the Corporation should materially breach this Agreement in any way and fail to correct such breach within 30 days of receipt of a written notice from Executive specifying the event breach and stating that he intends to terminate his employment hereunder pursuant to this Section 8(a) unless such breach is cured within 30 days, then Executive shall have no further liability hereunder and shall receive as liquidated damages, at the election of the Executive, either:
(i) continuation, for a period of three (3) years following such termination, (A) of Executive's Cash Compensation, paid in accordance with the Corporation's normal payroll schedule, and (B) of life, disability, and accident and health insurance coverages, reasonably comparable to all available group life, disability and accident and health insurance coverages in effect for Executive on the date of termination, offset by any coverages from any subsequent employment, provided, however, that Executive shall continue to be responsible for the cost of available insurance coverages following the termination hereunder to the same extent that he was responsible for the cost of the insurance coverages prior to such termination; and provided, further, that Executive shall have no duty to mitigate his damages hereunder or to seek other employment; or
(A) a Termination other than by reason of the Executive's death, or (B) the Executive's termination of his employment during the Employment Period for Good Reason, Cinergy will pay the Accrued Obligations, and Cinergy will have the following obligations:
(1) Cinergy will pay to the Executive a lump sum amount, in cash, equal to three (3) times the sum of the Annual Base Salary and the AIP Benefit. For this purpose, the Annual Base Salary will be at the rate in effect at the time Notice of Termination is given (without giving effect to any reduction in Annual Base Salary, if any, prior to the termination). The AIP Benefit will be determined using a percentage determined by the Chief Executive Officer, in his discretion, which will not be less than the Executive's annual target percentage for the fiscal year in which the Termination occurs and will not be greater than the maximum percentage specified in Subsection 3b. This lump sum will be paid within thirty (30) days of the Date of Termination.
(2) Cinergy will pay to the Executive the value of all deferred compensation amounts and all executive life insurance benefits whether or not they are otherwise currently vested or payable. Payment will be made in accordance with the terms of the applicable plan or program.
(3) Except as provided under Clauses (A) and (B) below, Cinergy will continue, until the end of the Employment Period, medical and dental benefits to the Executive and/or the Executive's family at least equal to those that would have been provided if the Executive's employment had not been terminated (excluding benefits to which the Executive has waived his rights in writing). The benefits described in the preceding sentence will be in accordance with the medical and welfare benefit plans, practices, programs, or policies of Cinergy (the "M&W Plans") as then currently in effect and applicable generally to other Cinergy senior executives and their families.
(A) If, as of the Executive's Date of Termination, the Executive meets the eligibility requirements for Cinergy's retiree medical and welfare benefit plans, the provision of those retiree medical and welfare benefit plans to the Executive will satisfy Cinergy's obligation under this Subparagraph 5a(ii)(3).
(B) If, as of the Executive's Date of Termination, the provision to the Executive of the M&W Plan benefits described in this Subparagraph 5a(ii)(3) would either (1) violate the terms of the M&W Plans or (2) violate any of the Code's nondiscrimination requirements applicable to the M&W Plans, then Cinergy, in its sole discretion, may elect to pay the Executive, in lieu of the M&W Plan benefits described under this Subparagraph 5a(ii)(3), a lump sum cash single payment equal to the total monthly premiums Cash Compensation payable pursuant to (i) (A), above, discounted to present value calculated at the Applicable Interest Rate (as defined in paragraph (d) of this Section 8), and (B) continuation, for a period of three (3) years following such termination, of life, disability, and accident and health insurance coverages, reasonably comparable to all available group life, disability and accident and health insurance coverages in effect for Executive on the date of termination, offset by any coverage from any subsequent employment, provided, however, that would have been paid by Cinergy Executive shall continue to be responsible for the Executive under cost of available insurance coverages following such termination to the M&W Plans from same extent that he was 6 responsible for the Date of Termination through the end cost of the Employment Period. Nothing in this Clause will affect the Executive's right insurance coverages prior to elect COBRA continuation coverage under a M&W Plan in accordance with applicable lawsuch termination; and provided, further, that Executive shall have no duty to mitigate his damages hereunder or to seek other employment.
(Cb) If Any of the Executive becomes employed by another employer and is eligible to receive medical or other welfare benefits under another employer-provided plan, any benefits provided to the Executive under the M&W Plans will be secondary to those provided under the other employer-provided plan following events occurring during the Executive's applicable period of eligibility.
(4) Ownership of the automobile assigned to the Executive by Cinergy will be transferred to the Executive within 30 days of the Date of Termination. The effect of this transfer will be grossed up for federal Term and state income taxes as soon as administratively feasible after the transfer is effective.
date of any Change in Control (5as defined in paragraph (d) Cinergy will provide tax counseling services through an agency selected by the Executive, not to exceed Fifteen Thousand Dollars ($15,000.00below) in cost.
(iii) In the event of Termination by Cinergy or by the Executive for Good Reason upon or which occurs during the twenty-four Term (24as defined in Section 2(a) month period after the occurrence of hereof) shall constitute a "Termination Pursuant to a Change in Control, then in lieu of any further salary payments to the Executive for periods subsequent to the Date of Termination and in lieu of any other benefits payable pursuant to Paragraph 5a(ii), Cinergy will have the following obligations":
(1i) Cinergy will pay to Executive's employment is terminated by the Corporation or an acquiror without cause, or
(ii) One of the following events occurs and Executive a lump sum severance payment, in cash, equal to the greater ofthereafter terminates his employment:
(A) the present value nature and scope of all amounts and benefits that would have been due under Paragraph 5a(ii), excluding Subparagraphs 5a(ii)(3), 5a(ii)(4), and 5a(ii)(5), or
(B) three (3) times the sum of (x) the higher of the Executive's Annual Base Salary in effect immediately prior to duties or responsibilities with the occurrence of the event Corporation or circumstance upon acquiror are materially reduced from that which the Notice of Termination is based or in effect he enjoyed immediately prior to the Change in Control, and Control (y) the higher other than as a result of the amount paid to the Executive pursuant to all annual incentive compensation or bonus plans or programs maintained by Cinergy in the year preceding that in which the Date of Termination occurs or in the year preceding that in which the Change in Control occursa termination for cause); andor
(2B) For a thirty-six Executive's then current base salary is reduced or material benefits provided in this Agreement (36excluding the reduction or curtailment of benefits which affect all similarly situated employees), are eliminated; or
(C) month period after the Date of Termination, Cinergy will arrange to provide the Executive with life, disability, accident, and health insurance benefits substantially similar to those that the Executive is receiving immediately prior assigned, without his consent, to the Notice a principal place of employment which is more than twenty-five (25) miles from 430 ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇.
(c) Upon any Termination (without giving effect to any reduction in those benefits subsequent Pursuant to a Change in Control that constitutes Good Reason(as defined in paragraph (b) above), except Executive shall have no further liability hereunder, and shall be entitled, at the election of the Executive, to either of the following:
(i) continuation for any benefits that were waived by a period of three (3) years from the Executive date of the Termination Pursuant to a Change in writing. If Cinergy arranges to provide Control (A) of Executive's Cash Compensation, paid in accordance with the Executive with Corporation's normal payroll schedule; and (B) of life, disability, accident, and accident and health insurance benefitscoverages, those benefits will reasonably comparable to all available group life, disability and accident and health insurance coverages in effect for Executive on the date of termination, offset by any coverage from any 7 subsequent employment; provided, however, that Executive shall continue to be reduced responsible for the cost of available insurance coverages following his termination to the same extent comparable benefits are actually received by or made available that he was responsible for the cost of the insurance coverages prior to the Executive without cost during the thirty-six (36) month period following the Executive's Date of Termination. The Executive must report to Cinergy any such benefits that he actually receives. In lieu of the benefits described in the preceding sentences, Cinergy, in its sole discretion, may elect to pay to the Executive a lump sum cash payment equal to thirty-six (36) times the monthly premiums that would have been paid by Cinergy to provide those benefits to the Executive. Nothing in this Subparagraph 5a(iii)(2) will affect the Executive's right to elect COBRA continuation coverage in accordance with applicable law.
(3) Ownership of the automobile assigned to the Executive by Cinergy will be transferred to the Executive within 30 days of the Date of Termination. The effect of this transfer will be grossed up for federal and state income taxes as soon as administratively feasible after the transfer is effective.
(4) Cinergy will provide tax counseling services through an agency selected by the Executive, not to exceed Fifteen Thousand Dollars ($15,000.00) in cost. For purposes of this Paragraph (iii), the Executive will be deemed to have incurred a Termination following a Change in Control if the Executive's employment is terminated prior Pursuant to a Change in Control; and provided, without Cause further, that Executive shall have no duty to mitigate his damages hereunder or to seek other employment; or
(A) a single payment equal to the total Cash Compensation payable over the required period of salary continuation specified in (i) (A) above, discounted to present value calculated at the direction Applicable Interest Rate, and (B) continuation, for the same period as would be required pursuant to (i) (B) above, of a Person who has entered into an agreement with Cinergylife, disability, and accident and health insurance coverages, reasonably comparable to all available group life, disability and accident and health insurance coverages in effect for Executive on the consummation date of which will constitute termination, offset by any coverages from any subsequent employment, provided, however, that Executive shall continue to be responsible for the cost of available insurance coverages following his termination to the same extent that he was responsible for the cost of the insurance coverages prior to the Termination Pursuant to a Change in Control; and provided, further, that Executive shall have no duty to mitigate his damages hereunder or if the Executive terminates his employment for Good Reason prior to a Change in Control if the circumstances or event that constitutes Good Reason occurs at the direction of such a Personseek other employment.
Appears in 1 contract
Sources: Employment Agreement (Shop Vac Corp)
Certain Terminations. (i) If a Qualifying Termination occurs during the Employment Period, Cinergy will pay to the Executive a lump sum amount, in cash, equal to the sum of the following Accrued Obligations:
(1) the pro-rated portion of the Executive's Annual Base Salary payable through the Date of Termination Termination, to the extent not previously paid;.
(2) any amount payable to the Executive under the Annual Incentive Plan in respect of the most recently completed fiscal year, to the extent not theretofore paid.
(3) an amount equal to the AIP Benefit for the fiscal year that includes the Date of Termination multiplied by a fraction, the numerator of which is the number of days from the beginning of that fiscal year to and including the Date of Termination and the denominator of which is three hundred and sixty-five (365). The AIP Benefit component of the calculation will be determined using a percentage equal to the annual bonus that would have been earned by the Executive pursuant to any annual bonus or incentive plan maintained by Cinergy in respect of the fiscal year in which occurs the date of determination, determined by projecting Cinergy's performance and other applicable goals and objectives for the Chief Executive Officer, in his discretion, up entire fiscal year based on Cinergy's performance during the period of such fiscal year occurring prior to the maximum percentage specified in Subsection 3bDate of Termination, but no less than the Target Annual Bonusand based on such other assumptions and rates as Cinergy deems reasonable.
(34) any compensation previously deferred by the Executive (together with any accrued interest or earnings) and any accrued vacation pay, in each case to the extent not previously paid. The Accrued Obligations described in this Paragraph 5a(i) will be paid within thirty (30) days after the Date of Termination. These Accrued Obligations are payable to the Executive regardless of whether a Change in Control has occurred.
(ii) Prior In the event of a Qualifying Termination either prior to the occurrence of a Change in Control, and or more than twenty-four (24) months following the occurrence of a Change in the event of (A) a Termination other than by reason of the Executive's death, or (B) the Executive's termination of his employment during the Employment Period for Good ReasonControl, Cinergy will pay the Accrued Obligations, and Cinergy will have the following additional obligations:
(1) Cinergy will pay to the Executive a lump sum amount, in cash, equal to three (3) times the sum of the Annual Base Salary and the AIP BenefitAnnual Bonus. For this purpose, the Annual Base Salary will be at the rate in effect at the time Notice of Termination is given (without giving effect to any reduction in Annual Base Salary, if any, prior to the termination, other than across-the-board reductions). The AIP Benefit , and the Annual Bonus will be determined using a percentage determined the higher of (A) the annual bonus earned by the Chief Executive Officerpursuant to any annual bonus or incentive plan maintained by Cinergy in respect of the year ending immediately prior to the fiscal year in which occurs the Date of Termination, and (B) the annual bonus that would have been earned by the Executive pursuant to any annual bonus or incentive plan maintained by Cinergy in his discretionrespect of the fiscal year in which occurs the Date of Termination, which will calculated by projecting Cinergy's performance and other applicable goals and objectives for the entire fiscal year based on Cinergy's performance during the period of such fiscal year occurring prior to the Date of Termination, and based on such other assumptions and rates as Cinergy deems reasonable; provided, however that for purposes of this Subsection 5a(ii)(1)(B), the Annual Bonus shall not be less than the Executive's annual target percentage Annual Target Bonus, nor greater than the Maximum Target Bonus for the fiscal year in which the Date of Termination occurs and will not be greater than the maximum percentage specified in Subsection 3boccurs. This lump sum will be paid within thirty (30) days of the Date of Termination.
(2) Cinergy will pay Subject to the Executive the value of all deferred compensation amounts and all executive life insurance benefits whether or not they are otherwise currently vested or payable. Payment will be made in accordance with the terms of the applicable plan or program.
(3) Except as provided under Clauses (A), (B) and (BC) below, Cinergy will continueprovide, until the end of the Employment Period, medical and dental benefits to the Executive and/or the Executive's family dependents at least equal to those that would have been provided if the Executive's employment had not been terminated (excluding benefits to which the Executive has waived his rights in writing). The benefits described in the preceding sentence will be in accordance with the medical and welfare benefit plans, practices, programs, or policies of Cinergy (the "M&W Plans") as then currently in effect and applicable generally to other Cinergy senior executives and their families.
(A) If, as of the Executive's Date of Termination, the Executive meets the eligibility requirements for Cinergy's retiree medical and welfare benefit plans, the provision of those retiree medical and welfare benefit plans to the Executive will satisfy Cinergy's obligation under this Subparagraph 5a(ii)(35a(ii)(2).
(B) If, as of the Executive's Date of Termination, the provision to the Executive of the M&W Plan benefits described in this Subparagraph 5a(ii)(35a(ii)(2) would either (1) violate the terms of the M&W Plans (or any related insurance policies) or (2) violate any of the Code's nondiscrimination requirements applicable to the M&W Plans, then Cinergy, in its sole discretion, may elect to pay the Executive, in lieu of the M&W Plan benefits described under this Subparagraph 5a(ii)(35a(ii)(2), a lump sum cash payment equal to the total monthly premiums (or in the case of a self funded plan, the cost of COBRA continuation coverage) that would have been paid by Cinergy for the Executive under the M&W Plans from the Date of Termination through the end of the Employment Period, grossed up for the effect of federal, state and local income taxes. Nothing in this Clause will affect the Executive's right to elect COBRA continuation coverage under a M&W Plan in accordance with applicable law, and Cinergy will make the payment described in this Clause whether or not the Executive elects COBRA continuation coverage, and whether or not the Executive receives health coverage from another employer.
(C) If the Executive becomes employed by another employer and is eligible to receive medical or other welfare benefits under another employer-provided plan, any benefits provided to the Executive under the M&W Plans will be secondary to those provided under the other employer-provided plan during the Executive's applicable period of eligibility.
(3) Cinergy will provide tax-counseling services through an agency selected by the Executive, not to exceed fifteen thousand dollars ($15,000.00) in cost.
(4) Ownership Title and ownership of the automobile assigned to the Executive by Cinergy will be transferred to the Executive within 30 thirty (30) days of the Date of Termination. The effect To the extent there is imputed income to the Executive resulting from the transfer of title, the Executive will receive a cash payment equal to the amount of federal, state and local income taxes resulting from this transfer will be grossed up for federal and state income taxes as soon as administratively feasible after the transfer is effective.
(5) Cinergy will provide tax counseling services through . At Cinergy's discretion, a cash payment of an agency selected by equivalent value of the Executive, not to exceed Fifteen Thousand Dollars ($15,000.00) automobile and corresponding income taxes may be paid in costlieu of the assignment of the automobile.
(iii) In the event of a Qualifying Termination by Cinergy or by the Executive for Good Reason upon or during the twenty-four (24) month period after beginning upon the occurrence of a Change in Control, then in lieu of any further salary payments to the Executive for periods subsequent to the Date of Termination and in lieu of any other benefits payable pursuant to Paragraph 5a(ii), Cinergy will pay the Accrued Obligations, and Cinergy will also have the following additional obligations:
(1) Cinergy will pay to the Executive a lump sum severance payment, in cash, equal to the greater of:
(A) the present value of all amounts and benefits that would have been due under Paragraph 5a(ii), excluding Subparagraphs 5a(ii)(3), 5a(ii)(4), and 5a(ii)(5), or
(B) three (3) times the sum higher of (x) the higher sum of the Executive's current Annual Base Salary and Target Annual Bonus and (y) the sum of the Executive's Annual Base Salary in effect immediately prior to the occurrence Change in Control and the Change in Control Bonus. For purposes of this Agreement, the Change in Control Bonus shall mean the higher of (A) the annual bonus earned by the Executive pursuant to any annual bonus or incentive plan maintained by Cinergy in respect of the event or circumstance upon which the Notice of Termination is based or in effect year ending immediately prior to the fiscal year in which occurs the Date of Termination or, if higher, immediately prior to the fiscal year in which occurs the Change in Control, and (yB) the higher of the amount paid to annual bonus that would have been earned by the Executive pursuant to all any annual bonus or incentive compensation or bonus plans or programs plan maintained by Cinergy in respect of the year preceding that in which occurs the Date of Termination, calculated by projecting Cinergy's performance and other applicable goals and objective for the entire fiscal year based on Cinergy's performance during the period of such fiscal year occurring prior to the Date of Termination, and based on such other assumptions and rates as Cinergy deems reasonable, provided, however, that for purposes of this Subsection 5a(iii)(1)(B), such Change in Control Annual Bonus shall not be less than the Annual Target Bonus, nor greater than the Maximum Target Bonus. This lump sum will be paid within thirty (30) days of the Date of Termination.
(2) Cinergy will pay to the Executive the lump sum present value of any benefits under the Executive Supplemental Life Program under the terms of the applicable plan or program as of the Date of Termination, calculated as if the Executive was fully vested as of the Date of Termination. The lump sum present value, assuming commencement at age 50 or age as of the Date of Termination occurs or if later, will be determined using the interest rate applicable to lump sum payments in the Cinergy Corp. Non-Union Employees' Pension Plan or any successor to that plan for the plan year that includes the Date of Termination. To the extent no such interest rate is provided therein, the annual interest rate applicable under section 417(e)(3) of the Code, or any successor provision thereto, for the second full calendar month preceding the first day of the calendar year that in which includes the Change in Control occurs; andDate of Termination will be used. This lump sum will be paid within thirty (30) days of the Date of Termination.
(23) The Executive shall be fully vested in his accrued benefits as of the Date of Termination under the Executive Retirement Plans, and his accrued benefits thereunder will be calculated as if the Executive was credited with three (3) additional years of age and service as of the Date of Termination. However, Cinergy will not commence payment of such benefits until the Executive has attained age 50. For purposes of determining benefits under the Executive Retirement Plans, the definition of earnings will be the same as defined in such plans.
(4) For a thirty-six (36) month period after the Date of Termination, Cinergy will arrange to provide to the Executive with and/or the Executive's dependents life, disability, accident, and health insurance benefits substantially similar to those that the Executive is and/or the Executive's dependents are receiving immediately prior to the Notice of Termination at a substantially similar cost to the Executive (without giving effect to any reduction in those benefits subsequent to a Change in Control that constitutes Good Reason), except for any benefits that were waived by the Executive in writing. If Cinergy arranges to provide the Executive and/or the Executive's dependents with life, disability, accident, and health insurance benefits, those benefits will be reduced to the extent comparable benefits are actually received by or made available to the Executive without cost and/or the Executive's dependents during the thirty-six (36) month period following the Executive's Date of Termination. The Executive must report to Cinergy any such benefits that he or his dependents actually receives. In lieu of the benefits described in the preceding sentences, Cinergy, in its sole discretion, may elect to pay to the Executive a lump sum cash payment equal to thirty-six (36) times the monthly premiums (or in the case of a self funded plan, the cost of COBRA continuation coverage) that would have been paid by Cinergy to provide those benefits to the Executive and/or the Executive's dependents, grossed up for the effect of federal, state and local income taxes. Nothing in this Subparagraph 5a(iii)(25a(iii)(4) will affect the Executive's right to elect COBRA continuation coverage in accordance with applicable law, and Cinergy will make the payment described in this Clause whether or not the Executive elects COBRA continuation coverage, and whether or not the Executive receives health coverage from another employer.
(35) Ownership Title and ownership of the automobile assigned to the Executive by Cinergy will be transferred to the Executive within 30 thirty (30) days of the Date of Termination. The effect To the extent there is imputed income to the Executive resulting from the transfer of title, the Executive will receive a cash payment equal to the amount of federal, state and local income taxes resulting from this transfer will be grossed up for federal and state income taxes as soon as administratively feasible after the transfer is effective. At Cinergy's discretion, a cash payment of an equivalent value of the automobile and corresponding income taxes may be paid in lieu of the assignment of the automobile.
(46) Cinergy will provide tax counseling services through an agency selected by the Executive, not to exceed Fifteen Thousand Dollars fifteen thousand dollars ($15,000.00) in cost.
(7) Cinergy will provide annual dues and assessments of the Executive for membership in a country club selected by the Executive until the end of the Employment Period.
(8) Cinergy will provide outplacement services suitable to the Executive's position until the end of the Employment Period or, if earlier, until the first acceptance by the Executive of an offer of employment. At the Executive's discretion, 15% of Annual Base Salary may be paid in lieu of outplacement services. For purposes of this Paragraph (iii5a(iii), the Executive will be deemed to have incurred a Qualifying Termination following upon a Change in Control if the Executive's employment is terminated prior to a Change in Control, without Cause at the direction of a Person who has entered into an agreement with Cinergy, the consummation of which will constitute a Change in Control, or if the Executive terminates his employment for Good Reason prior to a Change in Control if the circumstances or event that constitutes Good Reason occurs at the direction of such a Person.
Appears in 1 contract
Sources: Employment Agreement (Cinergy Corp)
Certain Terminations. (i) If a Termination occurs during the Employment Period, Cinergy will pay to the Executive a lump sum amount, in cash, equal to the sum of the following Accrued Obligations:
(1) the Executive's Annual Base Salary through the Date of Termination to the extent not previously paid;
(2) an amount equal to the AIP Benefit for the fiscal year that includes the Date of Termination multiplied by a fraction, the numerator of which is the number of days from the beginning of that fiscal year to and including the Date of Termination and the denominator of which is three hundred and sixty-five (365). The AIP Benefit will be determined using a percentage determined by the Chief Executive Officer, in his discretion, up to the maximum percentage specified in Subsection 3b, 3b but no less than the Target Annual Bonus.
(3) any compensation previously deferred by the Executive (together with any accrued interest or earnings) and any accrued vacation pay, in each case to the extent not previously paid. The Accrued Obligations described in this Paragraph 5a(i) will be paid within thirty (30) days after the Date of Termination. These Accrued Obligations are payable to the Executive regardless of whether a Change in Control has occurred.
(ii) Prior to the occurrence of a Change in Control, and in the event of (A) a Termination other than by reason of the Executive's death, death or (B) the Executive's termination of his employment during the Employment Period for Good Reason, Cinergy will pay the Accrued Obligations, and Cinergy will have the following obligations:
(1) Cinergy will pay to the Executive a lump sum amount, in cash, equal to three (3) times the sum of the Annual Base Salary and the AIP Benefit. For this purpose, the Annual Base Salary will be at the rate in effect at the time Notice of Termination is given (without giving effect to any reduction in Annual Base Salary, if any, prior to the termination). The AIP Benefit will be determined using a percentage determined by the Chief Executive Officer, in his discretion, which will not be less than the Executive's annual target percentage for the fiscal year in which the Termination occurs and will not be greater than the maximum percentage specified in Subsection 3b. This lump sum will be paid within thirty (30) days of the Date of Termination.
(2) If the Executive terminates employment with Cinergy prior to reaching age 50, Cinergy will pay to the Executive, within 30 days of the Date of Termination, a lump sum amount, in cash, equal to the present value, discounted at the Prime Rate, of all benefits to which the Executive would have been entitled had he remained employed by Cinergy until the end of the Employment Period, each, where applicable, at the rate of Annual Base Salary, and using the same goals and factors, in effect at the time Notice of Termination is given, under the Value Creation Plan of the LTIP and the Executive Supplemental Life Insurance Program, minus the present value, discounted at the Prime Rate, of the benefits to which he is actually entitled under these plans and programs. Cinergy will also pay to the Executive the value of all of his deferred compensation amounts, whether or not they are otherwise currently payable. If the Executive terminates employment on or after reaching age 50, Cinergy will pay to the Executive the value of all deferred compensation amounts and all executive life insurance benefits whether or not they are otherwise currently vested or payable. Payment will be made in accordance with the terms of the applicable plan or program.
(3) Except as provided under Clauses (A) and (B) below, Cinergy will continue, until the end of the Employment Period, medical and dental benefits to the Executive and/or the Executive's family at least equal to those that would have been provided if the Executive's employment had not been terminated (excluding benefits to which the Executive has waived his rights in writing). The benefits described in the preceding sentence will be in accordance with the medical and welfare benefit plans, practices, programs, or policies of Cinergy (the "M&W Plans") as then currently in effect and applicable generally to other Cinergy senior executives and their families.
(A) If, as of the Executive's Date of Termination, the Executive meets the eligibility requirements for Cinergy's retiree medical and welfare benefit plans, the provision of those retiree medical and welfare benefit plans to the Executive will satisfy Cinergy's obligation under this Subparagraph 5a(ii)(3).
(B) If, as of the Executive's Date of Termination, the provision to the Executive of the M&W Plan benefits described in this Subparagraph 5a(ii)(3) would either (1) violate the terms of the M&W Plans or (2) violate any of the Code's nondiscrimination requirements applicable to the M&W Plans, then Cinergy, in its sole discretion, may elect to pay the Executive, in lieu of the M&W Plan benefits described under this Subparagraph 5a(ii)(3), a lump sum cash payment equal to the total monthly premiums that would have been paid by Cinergy for the Executive under the M&W Plans from the Date of Termination through the end of the Employment Period. Nothing in this Clause will affect the Executive's right to elect COBRA continuation coverage under a M&W Plan in accordance with applicable law.
(C) If the Executive becomes employed by another employer and is eligible to receive medical or other welfare benefits under another employer-provided plan, any benefits provided to the Executive under the M&W Plans will be secondary to those provided under the other employer-provided plan during the Executive's applicable period of eligibility.
(4) Ownership of the automobile assigned to the Executive by Cinergy will be transferred to the Executive within 30 days of the Date of Termination. The effect of this transfer will be grossed up for federal and state income taxes as soon as administratively feasible after the transfer is effective.
(5) Cinergy will provide tax counseling services through an agency selected by the Executive, not to exceed Fifteen Thousand Dollars ($15,000.00) in cost.
(iii) In the event of Termination Termination, by Cinergy or by the Executive for Good Reason Reason, upon or during the twenty-four (24) month period after the occurrence of a Change in Control, then in lieu of any further salary payments to the Executive for periods subsequent to the Date of Termination and in lieu of any other benefits payable pursuant to Paragraph 5a(ii), Cinergy will have the following obligations:
(1) Cinergy will pay to the Executive a lump sum severance payment, in cash, equal to the greater of:
(A) the present value of all amounts and benefits that would have been due under Paragraph 5a(ii), excluding Subparagraphs 5a(ii)(3), 5a(ii)(4), and 5a(ii)(5), or
(B) three (3) times the sum of (x) the higher of the Executive's Annual Base Salary in effect immediately prior to the occurrence of the event or circumstance upon which the Notice of Termination is based or in effect immediately prior to the Change in Control, and (y) the higher of the amount paid to the Executive pursuant to all annual incentive compensation or bonus plans or programs maintained by Cinergy in the year preceding that in which the Date of Termination occurs or in the year preceding that in which the Change in Control occurs; and
(2) For a thirty-six (36) month period after the Date of Termination, Cinergy will arrange to provide the Executive with life, disability, accident, and health insurance benefits substantially similar to those that the Executive is receiving immediately prior to the Notice of Termination (without giving effect to any reduction in those benefits subsequent to a Change in Control that constitutes Good Reason), except for any benefits that were waived by the Executive in writing. If Cinergy arranges to provide the Executive with life, disability, accident, and health insurance benefits, those benefits will be reduced to the extent comparable benefits are actually received by or made available to the Executive without cost during the thirty-six (36) month period following the Executive's Date of Termination. The Executive must report to Cinergy any such benefits that he actually receives. In lieu of the benefits described in the preceding sentences, Cinergy, in its sole discretion, may elect to pay to the Executive a lump sum cash payment equal to thirty-six (36) times the monthly premiums that would have been paid by Cinergy to provide those benefits to the Executive. Nothing in this Subparagraph 5a(iii)(2) will affect the Executive's right to elect COBRA continuation coverage in accordance with applicable law.
(3) Ownership of the automobile assigned to the Executive by Cinergy will be transferred to the Executive within 30 days of the Date of Termination. The effect of this transfer will be grossed up for federal and state income taxes as soon as administratively feasible after the transfer is effective.
(4) Cinergy will provide tax counseling services through an agency selected by the Executive, not to exceed Fifteen Thousand Dollars ($15,000.00) in cost. For purposes of this Paragraph (iii), the Executive will be deemed to have incurred a Termination following a Change in Control if the Executive's employment is terminated prior to a Change in Control, without Cause at the direction of a Person who has entered into an agreement with Cinergy, the consummation of which will constitute a Change in Control, or if the Executive terminates his employment for Good Reason prior to a Change in Control if the circumstances or event that constitutes Good Reason occurs at the direction of such a Person.
Appears in 1 contract
Certain Terminations. (a) Termination by the Company other than for Cause, Death or Disability; Termination by the Executive for Good Reason. If the Executive’s employment is terminated (i) If a Termination occurs during by the Employment PeriodCompany other than for Cause, Cinergy will pay death or Disability or (ii) by the Executive for Good Reason, in addition to the Accrued Amounts, the Executive a lump sum amount, in cash, equal shall be entitled to the sum of the following Accrued Obligations:
(1A) the Executive's Annual Base Salary through the Date payment of Termination to the extent not previously paid;
(2) an amount equal to one and one-half times his Base Salary at the AIP Benefit for rate in effect immediately prior to the fiscal year that includes Termination Date in equal installments on the Date Company’s regular payment dates occurring during the 18-month period beginning on the first payroll date following the date on which the Release (as defined below) has become effective and (B) a prorated portion of Termination multiplied the Executive’s actual Annual Bonus, determined in accordance with Section 2.2 and payable at the same time as annual bonuses are paid to other senior executives of the Company, with the prorated Annual Bonus determined by multiplying the actual Annual Bonus, if any, by a fraction, the numerator of which is the number of days from the beginning of that fiscal Executive is employed by the Company during the applicable year to and including the Date of Termination and the denominator of which is three hundred and sixty-five 365 (365). The AIP Benefit will be determined using a percentage determined by the Chief Executive Officer, in his discretion, up to the maximum percentage specified in Subsection 3b, but no less than the Target Annual Bonus.
(3) any compensation previously deferred by the Executive (together with any accrued interest or earnings) and any accrued vacation pay, in each case to the extent not previously paid. The Accrued Obligations described in this Paragraph 5a(i) will be paid within thirty (30) days after the Date of Termination. These Accrued Obligations are payable to the Executive regardless of whether a Change in Control has occurred.
(ii) Prior to the occurrence of a Change in Control, and in the event of (A) a Termination other than by reason of the Executive's death, or (B) the Executive's termination of his employment during the Employment Period for Good Reason, Cinergy will pay the Accrued Obligations, and Cinergy will have the following obligations:
(1) Cinergy will pay to the Executive a lump sum amount, in cash, equal to three (3) times the sum of the Annual Base Salary and the AIP Benefit. For this purpose, the Annual Base Salary will be at the rate in effect at the time Notice of Termination is given (without giving effect to any reduction in Annual Base Salary, if any, prior to the termination). The AIP Benefit will be determined using a percentage determined by the Chief Executive Officer, in his discretion, which will not be less than the Executive's annual target percentage for the fiscal year in which the Termination occurs and will not be greater than the maximum percentage specified in Subsection 3b. This lump sum will be paid within thirty (30) days of the Date of Termination.
(2) Cinergy will pay to the Executive the value of all deferred compensation amounts and all executive life insurance benefits whether or not they are otherwise currently vested or payable. Payment will be made in accordance with the terms of the applicable plan or program.
(3) Except as provided under Clauses (A) and (B) belowcollectively, Cinergy will continue, until the end of the Employment Period, medical and dental benefits to the Executive and/or the Executive's family at least equal to those that would have been provided if the Executive's employment had not been terminated (excluding benefits to which the Executive has waived his rights in writing“Severance Amount”). The benefits described in the preceding sentence will be in accordance with the medical and welfare benefit plans, practices, programs, or policies of Cinergy (the "M&W Plans") as then currently in effect and applicable generally to other Cinergy senior executives and their families.
(A) If, as of the Executive's Date of TerminationIn addition, the Executive meets the eligibility requirements for Cinergy's retiree medical and welfare benefit plans, the provision of those retiree medical and welfare benefit plans to the Executive will satisfy Cinergy's obligation under this Subparagraph 5a(ii)(3).
(B) If, as of the Executive's Date of Termination, the provision to the Executive of the M&W Plan benefits described in this Subparagraph 5a(ii)(3) would either (1) violate the terms of the M&W Plans or (2) violate any of the Code's nondiscrimination requirements applicable to the M&W Plans, then Cinergy, in its sole discretion, may elect to pay the Executive, in lieu of the M&W Plan benefits described under this Subparagraph 5a(ii)(3), a lump sum cash payment equal to the total monthly premiums that would have been paid by Cinergy for the Executive under the M&W Plans from the Date of Termination through the end of the Employment Period. Nothing in this Clause will affect the Executive's right to elect COBRA continuation coverage under a M&W Plan in accordance with applicable law.
(C) If the Executive becomes employed by another employer and is eligible to receive medical or other welfare benefits under another employer-provided plan, any benefits provided to the Executive under the M&W Plans will be secondary to those provided under the other employer-provided plan during the Executive's applicable period of eligibility.
(4) Ownership of the automobile assigned to the Executive by Cinergy will be transferred to the Executive within 30 days of the Date of Termination. The effect of this transfer will be grossed up for federal and state income taxes as soon as administratively feasible after the transfer is effective.
(5) Cinergy will provide tax counseling services through an agency selected by the Executive, not to exceed Fifteen Thousand Dollars ($15,000.00) in cost.
(iii) In the event of Termination by Cinergy or by the Executive for Good Reason upon or during the twenty-four (24) month period after the occurrence of a Change in Control, then in lieu of any further salary payments to the Executive for periods subsequent to the Date of Termination and in lieu of any other benefits payable pursuant to Paragraph 5a(ii), Cinergy will have the following obligations:
(1) Cinergy will pay to the Executive a lump sum severance payment, in cash, equal to the greater of:
(A) the present value of all amounts and benefits that would have been due under Paragraph 5a(ii), excluding Subparagraphs 5a(ii)(3), 5a(ii)(4), and 5a(ii)(5), or
(B) three (3) times the sum of (x) the higher of the Executive's Annual Base Salary in effect immediately prior to the occurrence of the event or circumstance upon which the Notice of Termination is based or in effect immediately prior to the Change in Control, and (y) the higher of the amount paid to the Executive pursuant to all annual incentive compensation or bonus plans or programs maintained by Cinergy in the year preceding that in which the Date of Termination occurs or in the year preceding that in which the Change in Control occurs; and
(2) For a thirty-six (36) month period after the Date of Termination, Cinergy will arrange to Company shall provide the Executive with lifecontinued medical and dental insurance coverage for 18 months following the Termination Date or, disabilityif earlier, accidentuntil the Executive becomes covered under a health plan offered by a subsequent employer, and health with such insurance benefits substantially similar coverage to those be fully paid by the Company (“Benefits Continuation”). In the event that the Benefits Continuation is taxable to the Executive, an additional amount shall simultaneously be paid with any Benefits Continuation such that the Executive is receiving immediately prior shall receive the Benefits Continuation and the additional amounts paid under this sentence on an after tax basis. The Company’s obligations to pay the Notice of Termination Severance Amount and pay premiums relating to Benefits Continuation shall be conditioned upon: (without giving effect to any reduction in those benefits subsequent to a Change in Control that constitutes Good Reason), except for any benefits that were waived by the Executive in writing. If Cinergy arranges to provide the Executive with life, disability, accident, and health insurance benefits, those benefits will be reduced to the extent comparable benefits are actually received by or made available to the Executive without cost during the thirty-six (36i) month period following the Executive's Date ’s continued compliance with his obligations under Section 4 of Termination. The Executive must report to Cinergy any such benefits that he actually receives. In lieu this Employment Agreement and (ii) the Executive’s execution, delivery and non-revocation of a valid and enforceable general release of claims (the benefits described “Release”) substantially in the preceding sentencesform attached hereto as Exhibit B, Cinergy, in its sole discretion, may elect to pay to the Executive a lump sum cash payment equal to thirty-six (36) times the monthly premiums that would have been paid by Cinergy to provide those benefits to within 45 days after the Executive. Nothing in this Subparagraph 5a(iii)(2) will affect the Executive's right to elect COBRA continuation coverage in accordance with applicable law’s Termination Date.
(3) Ownership of the automobile assigned to the Executive by Cinergy will be transferred to the Executive within 30 days of the Date of Termination. The effect of this transfer will be grossed up for federal and state income taxes as soon as administratively feasible after the transfer is effective.
(4) Cinergy will provide tax counseling services through an agency selected by the Executive, not to exceed Fifteen Thousand Dollars ($15,000.00) in cost. For purposes of this Paragraph (iii), the Executive will be deemed to have incurred a Termination following a Change in Control if the Executive's employment is terminated prior to a Change in Control, without Cause at the direction of a Person who has entered into an agreement with Cinergy, the consummation of which will constitute a Change in Control, or if the Executive terminates his employment for Good Reason prior to a Change in Control if the circumstances or event that constitutes Good Reason occurs at the direction of such a Person.
Appears in 1 contract
Sources: Employment Agreement
Certain Terminations. (i) If a Termination occurs during the Employment Period, Cinergy will pay to the Executive a lump sum amount, in cash, equal to the sum of the following Accrued Obligations:
(1) the Executive's Annual Base Salary through the Date of Termination to the extent not previously paid;
(2) an amount equal to the AIP Benefit for the fiscal year that includes the Date of Termination multiplied by a fraction, the numerator of which is the number of days from the beginning of that fiscal year to and including the Date of Termination and the denominator of which is three hundred and sixty-five (365). The AIP Benefit component of the calculation will be determined using a percentage determined by the Chief Executive Officer, in his discretion, up to the maximum percentage specified in Subsection 3b, but no less than the Target Annual Bonus.; and
(3) any compensation previously deferred by the Executive vested Deferred Compensation (together with any accrued interest or earnings) and any accrued vacation pay, in each case to the extent not previously paid. The Accrued Obligations described in this Paragraph 5a(i) will be paid within thirty (30) days after the Date of Termination. These Accrued Obligations are payable to the Executive regardless of whether a Change in Control has occurred.
(ii) Prior to In the event of a Termination prior to, or greater than twenty-four (24) months subsequent to, the occurrence of a Change in Control, and in the event of (A) a Termination other than by reason of the Executive's death, or (B) the Executive's termination of his employment during the Employment Period for Good Reason, Cinergy will pay the Accrued Obligations, and Cinergy will have the following obligations:
(1) Cinergy will pay to the Executive a lump sum amount, in cash, equal to three two (32) times the sum of the Annual Base Salary and the AIP BenefitTarget Annual Bonus. For this purpose, the Annual Base Salary will be at the rate in effect at the time Notice of Termination is given (without giving effect to any reduction in Annual Base Salary, if any, prior to the termination). The AIP Benefit will be determined using a percentage determined by the Chief Executive Officer, in his discretion, which will not be less than the Executive's annual target percentage for the fiscal year in which the Termination occurs and will not be greater than the maximum percentage specified in Subsection 3b. This lump sum will be paid within thirty (30) days of the Date of Termination.
(2) Cinergy will pay to the Executive the value of all deferred compensation (A) any Deferred Compensation, beyond that included in the Accrued Obligations and (B) any benefits under the Executive Supplemental Life Program, to the extent that these amounts are vested and all executive life insurance benefits whether or not they are otherwise currently vested or payable. Payment will be made in accordance with payable under the terms of the applicable plan or programprogram as of the Date of Termination.
(3) Except as provided under Clauses (A) and (B) below, Cinergy will continue, until the end of the Employment Period, medical and dental benefits to the Executive and/or the Executive's family at least equal to those that would have been provided if the Executive's employment had not been terminated (excluding benefits to which the Executive has waived his rights in writing). The benefits described in the preceding sentence will be in accordance with the medical and welfare benefit plans, practices, programs, or policies of Cinergy (the "M&W Plans") as then currently in effect and applicable generally to other Cinergy senior executives and their families.
(A) If, as of the Executive's Date of Termination, the Executive meets the eligibility requirements for Cinergy's retiree medical and welfare benefit plans, the provision of those retiree medical and welfare benefit plans to the Executive will satisfy Cinergy's obligation under this Subparagraph 5a(ii)(3).
(B) If, as of the Executive's Date of Termination, the provision to the Executive of the M&W Plan benefits described in this Subparagraph 5a(ii)(3) would either (1) violate the terms of the M&W Plans or (2) violate any of the Code's nondiscrimination requirements applicable to the M&W Plans, then Cinergy, in its sole discretion, may elect to pay the Executive, in lieu of the M&W Plan benefits described under this Subparagraph 5a(ii)(3), a lump sum cash payment equal to the total monthly premiums that would have been paid by Cinergy for the Executive under the M&W Plans from the Date of Termination through the end of the Employment Period. Nothing in this Clause will affect the Executive's right to elect COBRA continuation coverage under a M&W Plan in accordance with applicable law.
(C) If the Executive becomes employed by another employer and is eligible to receive medical or other welfare benefits under another employer-provided plan, any benefits provided to the Executive under the M&W Plans will be secondary to those provided under the other employer-provided plan during the Executive's applicable period of eligibility.
(4) Ownership of the automobile assigned to the Executive by Cinergy will be transferred to the Executive within 30 days of the Date of Termination. The effect of this transfer will be grossed up for federal and state income taxes as soon as administratively feasible after the transfer is effective.
(5) Cinergy will provide tax counseling services through an agency selected by the Executive, not to exceed Fifteen Thousand Dollars ($15,000.00) in cost.
(iii) In the event of Termination by Cinergy or by the Executive for Good Reason upon or during the twenty-four (24) month period after the occurrence of a Change in Control, then in lieu of any further salary payments to the Executive for periods subsequent to the Date of Termination and in lieu of any other benefits payable pursuant to Paragraph 5a(ii), Cinergy will have the following obligations:
(1) Cinergy will pay to the Executive a lump sum severance payment, in cash, equal to the greater of:
(A) the present value of all amounts and benefits that would have been due under Paragraph 5a(ii), excluding Subparagraphs 5a(ii)(3), 5a(ii)(4), and 5a(ii)(5), or
(B) three (3) times the sum higher of (x) the higher sum of the Executive's current Annual Base Salary and AIP Benefit, or (y) the sum of the Executive Annual Base Salary in effect immediately prior to the occurrence of the event or circumstance upon which the Notice of Termination is based or in effect immediately prior to the Change in Control, Control and (y) the higher of the amount paid to the Executive pursuant to all annual incentive compensation or bonus plans or programs maintained by Cinergy in his AIP Benefit for the year preceding that in which the Date of Termination occurs or in the year preceding that in which the Change in Control occurs; and
(2) Cinergy will pay to the Executive the value of (A) any Deferred Compensation, beyond that included in the Accrued Obligations and (B) any benefits under the Executive Supplemental Life Program, to the extent that these amounts are vested and payable under the terms of the applicable plan or program as of the Date of Termination.
(3) For a thirty-six (36) month period after the Date of Termination, Cinergy will arrange to provide the Executive with life, disability, accident, and health insurance benefits substantially similar to those that the Executive is receiving immediately prior to the Notice of Termination (without giving effect to any reduction in those benefits subsequent to a Change in Control that constitutes Good Reason), except for any benefits that were waived by the Executive in writing. If Cinergy arranges to provide the Executive with life, disability, accident, and health insurance benefits, those benefits will be reduced to the extent comparable benefits are actually received by or made available to the Executive without cost during the thirty-six (36) month period following the Executive's Date of Termination. The Executive must report to Cinergy any such benefits that he actually receives. In lieu of the benefits described in the preceding sentences, Cinergy, in its sole discretion, may elect to pay to the Executive a lump sum cash payment equal to thirty-six (36) times the monthly premiums that would have been paid by Cinergy to provide those benefits to the Executive. Nothing in this Subparagraph 5a(iii)(25a(iii)(3) will affect the Executive's right to elect COBRA continuation coverage in accordance with applicable law.
(34) Ownership of the automobile assigned to the Executive by Cinergy will be transferred to the Executive within 30 days of the Date of Termination. The effect of this transfer will be grossed up for federal and state income taxes as soon as administratively feasible after the transfer is effective.
(45) Cinergy will provide tax counseling services through an agency selected by the Executive, not to exceed Fifteen Thousand Dollars ($15,000.00) in cost. For purposes of this Paragraph (iii), the Executive will be deemed to have incurred a Termination following a Change in Control if the Executive's employment is terminated prior to a Change in Control, without Cause at the direction of a Person who has entered into an agreement with Cinergy, the consummation of which will constitute a Change in Control, or if the Executive terminates his employment for Good Reason prior to a Change in Control if the circumstances or event that constitutes Good Reason occurs at the direction of such a Person.
Appears in 1 contract
Certain Terminations. (i) If a Qualifying Termination occurs during the Employment Period, Cinergy will pay to the Executive a lump sum amount, in cash, equal to the sum of the following Accrued Obligations:
(1) the pro-rated portion of the Executive's ’s Annual Base Salary payable through the Date of Termination Termination, to the extent not previously paid;.
(2) any amount payable to the Executive under the Annual Incentive Plan in respect of the most recently completed fiscal year, to the extent not theretofore paid.
(3) an amount equal to the AIP Benefit for the fiscal year that includes the Date of Termination multiplied by a fraction, the numerator of which is the number of days from the beginning of that fiscal year to and including the Date of Termination and the denominator of which is three hundred and sixty-five (365). The AIP Benefit component of the calculation will be determined using a percentage equal to the annual bonus that would have been earned by the Executive pursuant to any annual bonus or incentive plan maintained by Cinergy in respect of the fiscal year in which occurs the Date of Termination, determined by projecting Cinergy’s performance and other applicable goals and objectives for the Chief Executive Officer, in his discretion, up entire fiscal year based on Cinergy’s performance during the period of such fiscal year occurring prior to the maximum percentage specified in Subsection 3bDate of Termination, but no less than the Target Annual Bonusand based on such other assumptions and rates as Cinergy deems reasonable.
(34) any compensation previously deferred by the Executive (together with any accrued interest or earnings) and any accrued vacation pay, in each case to the extent not previously paid. The Accrued Obligations described in this Paragraph Section 5a(i) will be paid within thirty (30) days after the Date of Termination. These Accrued Obligations are payable to the Executive regardless of whether a Change in Control has occurred.
(ii) Prior In the event of a Qualifying Termination either prior to the occurrence of a Change in Control, and or more than twenty-four (24) months following the occurrence of a Change in the event of (A) a Termination other than by reason of the Executive's death, or (B) the Executive's termination of his employment during the Employment Period for Good ReasonControl, Cinergy will pay the Accrued Obligations, and Cinergy will have the following obligations:additional obligations described in this Section 5a(ii); provided, however, that each of the benefits described below in this Section 5a(ii) shall only be provided to the Executive if, upon presentation to the Executive following a Qualifying Termination, the Executive timely executes and does not timely revoke the Waiver and Release.
(1) Cinergy will pay to the Executive a lump sum amount, in cash, equal to three (3) times the sum of the Annual Base Salary and the AIP BenefitAnnual Bonus. For this purpose, the Annual Base Salary will be at the rate in effect at the time Notice of Termination is given (without giving effect to any reduction in Annual Base Salary, if any, prior to the termination, other than across-the-board reductions). The AIP Benefit will be determined using a percentage determined by , and shall include the Chief amount of any Nonelective Employer Contributions made on behalf of the Executive Officer, in his discretion, which will not be less than under the Executive's annual target percentage for 401(k) Excess Plan during the fiscal year in which the Executive’s Qualifying Termination occurs, and the Annual Bonus will be the higher of (A) the annual bonus earned by the Executive pursuant to any annual bonus or incentive plan maintained by Cinergy in respect of the year ending immediately prior to the fiscal year in which occurs the Date of Termination, and will (B) the annual bonus that would have been earned by the Executive pursuant to any annual bonus or incentive plan maintained by Cinergy in respect of the fiscal year in which occurs the Date of Termination, calculated by projecting Cinergy’s performance and other applicable goals and objectives for the entire fiscal year based on Cinergy’s performance during the period of such fiscal year occurring prior to the Date of Termination, and based on such other assumptions and rates as Cinergy deems reasonable; provided, however that for purposes of this Section 5a(ii)(1)(B), the Annual Bonus shall not be less than the Target Annual Bonus, nor greater than the maximum percentage specified Maximum Annual Bonus for the year in Subsection 3bwhich the Date of Termination occurs. This lump sum will be paid within thirty (30) days after the expiration of the Date of Terminationrevocation period contained in the Waiver and Release.
(2) Cinergy will pay Subject to the Executive the value of all deferred compensation amounts and all executive life insurance benefits whether or not they are otherwise currently vested or payable. Payment will be made in accordance with the terms of the applicable plan or program.
(3) Except as provided under Clauses (A), (B) and (BC) below, Cinergy will continueprovide, until the end of the Employment Period, medical and dental benefits to the Executive and/or the Executive's family ’s dependents at least equal to those that would have been provided if the Executive's ’s employment had not been terminated (excluding benefits to which the Executive has waived his rights in writing). The benefits described in the preceding sentence will be in accordance with the medical and welfare benefit plans, practices, programs, or policies of Cinergy (the "“M&W Plans"”) as then currently in effect and applicable generally to other Cinergy senior executives and their families. In the event that any medical or dental benefits or payments provided pursuant to this Section 5a(ii)(2)(B) are subject to federal, state, or local income or employment taxes, Cinergy shall provide the Executive with an additional payment in the amount necessary such that after payment by the Executive of all such taxes (calculated after assuming that the Executive pays such taxes for the year in which the payment or benefit occurs at the highest marginal tax rate applicable), including the taxes imposed on the additional payment, the Executive retains an amount equal to the medical or dental benefits or payments provided pursuant to this Section 5a(ii)(2)(B).
(A) If, as of the Executive's ’s Date of Termination, the Executive meets the eligibility requirements for Cinergy's ’s retiree medical and welfare benefit plans, the provision of those retiree medical and welfare benefit plans to the Executive will satisfy Cinergy's ’s obligation under this Subparagraph 5a(ii)(3Section 5a(ii)(2).
(B) If, as of the Executive's ’s Date of Termination, the provision to the Executive of the M&W Plan benefits described in this Subparagraph 5a(ii)(3Section 5a(ii)(2) would either (1) violate the terms of the M&W Plans (or any related insurance policies) or (2) violate any of the Code's ’s nondiscrimination requirements applicable to the M&W Plans, then Cinergy, in its sole discretion, may elect to pay the Executive, in lieu of the M&W Plan benefits described under this Subparagraph 5a(ii)(3Section 5a(ii)(2), a lump sum cash payment equal to the total monthly premiums (or in the case of a self funded plan, the cost of COBRA continuation coverage) that would have been paid by Cinergy for the Executive under the M&W Plans from the Date of Termination through the end of the Employment Period. Nothing in this Clause will affect the Executive's ’s right to elect COBRA continuation coverage under a M&W Plan in accordance with applicable law, and Cinergy will make the payment described in this Clause whether or not the Executive elects COBRA continuation coverage, and whether or not the Executive receives health coverage from another employer.
(C) If the Executive becomes employed by another employer and is eligible to receive medical or other welfare benefits under another employer-provided plan, any benefits provided to the Executive under the M&W Plans will be secondary to those provided under the other employer-provided plan during the Executive's ’s applicable period of eligibility.
(4) Ownership of the automobile assigned to the Executive by Cinergy will be transferred to the Executive within 30 days of the Date of Termination. The effect of this transfer will be grossed up for federal and state income taxes as soon as administratively feasible after the transfer is effective.
(53) Cinergy will provide pay the Executive a lump sum amount, in cash, equal to $15,000 in order to cover tax counseling services through an agency selected by the Executive. In the event any payment to the Executive pursuant to this Section 5a(ii)(3) is subject to any federal, not state, or local income or employment taxes, Cinergy shall provide to exceed Fifteen Thousand Dollars the Executive an additional payment in an amount necessary such that after payment by the Executive of all such taxes ($15,000.00calculated after assuming that the Executive pays such taxes for the year in which his Date of Termination occurs at the highest marginal tax rate applicable), including the taxes imposed on the additional payment, the Executive retains an amount equal to the payment provided pursuant to this Section 5a(ii)(3). Such payment will be transferred to the Executive within thirty (30) days of the expiration of the revocation period contained in costthe Waiver and Release.
(iii) In the event of a Qualifying Termination by Cinergy or by the Executive for Good Reason upon or during the twenty-four (24) month period after beginning upon the occurrence of a Change in Control, then Cinergy will pay the Accrued Obligations listed in lieu of any further salary payments to the Executive for periods subsequent to the Date of Termination Sections 5a(i)(1) and in lieu of any other benefits payable pursuant to Paragraph 5a(ii(2), Cinergy will pay the Accrued Obligations listed in Section 5a(i)(3) (but only if such Qualifying Termination occurs after the calendar year in which occurs such Change in Control) and Cinergy will have the following obligations:additional obligations described in this Section 5a(iii); provided, however, that each of the benefits described below in this Section 5a(iii) shall only be provided to the Executive if, upon presentation to the Executive following a Qualifying Termination, the Executive timely executes and does not timely revoke the Waiver and Release.
(1) Cinergy will pay to the Executive a lump sum severance payment, in cash, equal to the greater of:
(A) the present value of all amounts and benefits that would have been due under Paragraph 5a(ii), excluding Subparagraphs 5a(ii)(3), 5a(ii)(4), and 5a(ii)(5), or
(B) three (3) times the sum higher of (x) the higher sum of the Executive's ’s current Annual Base Salary and Target Annual Bonus and (y) the sum of the Executive’s Annual Base Salary in effect immediately prior to the occurrence of the event or circumstance upon which the Notice of Termination is based or in effect immediately prior to the Change in Control, and (y) the higher of the amount paid to the Executive pursuant to all annual incentive compensation or bonus plans or programs maintained by Cinergy in the year preceding that in which the Date of Termination occurs or in the year preceding that in which the Change in Control occurs; and
(2) For a thirty-six (36) month period after and the Date of Termination, Cinergy will arrange to provide the Executive with life, disability, accident, and health insurance benefits substantially similar to those that the Executive is receiving immediately prior to the Notice of Termination (without giving effect to any reduction in those benefits subsequent to a Change in Control that constitutes Good Reason), except for any benefits that were waived by the Executive in writing. If Cinergy arranges to provide the Executive with life, disability, accident, and health insurance benefits, those benefits will be reduced to the extent comparable benefits are actually received by or made available to the Executive without cost during the thirty-six (36) month period following the Executive's Date of Termination. The Executive must report to Cinergy any such benefits that he actually receives. In lieu of the benefits described in the preceding sentences, Cinergy, in its sole discretion, may elect to pay to the Executive a lump sum cash payment equal to thirty-six (36) times the monthly premiums that would have been paid by Cinergy to provide those benefits to the Executive. Nothing in this Subparagraph 5a(iii)(2) will affect the Executive's right to elect COBRA continuation coverage in accordance with applicable law.
(3) Ownership of the automobile assigned to the Executive by Cinergy will be transferred to the Executive within 30 days of the Date of Termination. The effect of this transfer will be grossed up for federal and state income taxes as soon as administratively feasible after the transfer is effective.
(4) Cinergy will provide tax counseling services through an agency selected by the Executive, not to exceed Fifteen Thousand Dollars ($15,000.00) in cost. For purposes of this Paragraph (iii), the Executive will be deemed to have incurred a Termination following a Change in Control if the Executive's employment is terminated prior to a Change in Control, without Cause at the direction of a Person who has entered into an agreement with Cinergy, the consummation of which will constitute a Change in Control, or if the Executive terminates his employment for Good Reason prior to a Change in Control if the circumstances or event that constitutes Good Reason occurs at the direction of such a Person.in
Appears in 1 contract
Sources: Employment Agreement (Cincinnati Gas & Electric Co)
Certain Terminations. (i) If a Qualifying Termination occurs during the Employment Period, Cinergy will pay to the Executive a lump sum amount, in cash, equal to the sum of the following Accrued Obligations:
(1) the pro-rated portion of the Executive's Annual Base Salary payable through the Date of Termination Termination, to the extent not previously paid;.
(2) any amount payable to the Executive under the Annual Incentive Plan in respect of the most recently completed fiscal year, to the extent not theretofore paid.
(3) an amount equal to the AIP Benefit for the fiscal year that includes the Date of Termination multiplied by a fraction, the numerator of which is the number of days from the beginning of that fiscal year to and including the Date of Termination and the denominator of which is three hundred and sixty-five (365). The AIP Benefit component of the calculation will be determined using a percentage equal to the annual bonus that would have been earned by the Executive pursuant to any annual bonus or incentive plan maintained by Cinergy in respect of the fiscal year in which occurs the Date of Termination, determined by projecting Cinergy's performance and other applicable goals and objectives for the Chief Executive Officer, in his discretion, up entire fiscal year based on Cinergy's performance during the period of such fiscal year occurring prior to the maximum percentage specified in Subsection 3bDate of Termination, but no less than the Target Annual Bonusand based on such other assumptions and rates as Cinergy deems reasonable.
(34) any compensation previously deferred by the Executive (together with any accrued interest or earnings) and any accrued vacation pay, in each case to the extent not previously paid. The Accrued Obligations described in this Paragraph 5a(i) will be paid within thirty (30) days after the Date of Termination. These Accrued Obligations are payable to the Executive regardless of whether a Change in Control has occurred.
(ii) Prior In the event of a Qualifying Termination either prior to the occurrence of a Change in Control, and or more than twenty-four (24) months following the occurrence of a Change in the event of (A) a Termination other than by reason of the Executive's death, or (B) the Executive's termination of his employment during the Employment Period for Good ReasonControl, Cinergy will pay the Accrued Obligations, and Cinergy will have the following additional obligations:
(1) Cinergy will pay to the Executive a lump sum amount, in cash, equal to three (3) times the sum of the Annual Base Salary and the AIP BenefitAnnual Bonus. For this purpose, the Annual Base Salary will be at the rate in effect at the time Notice of Termination is given (without giving effect to any reduction in Annual Base Salary, if any, prior to the termination, other than across-the-board reductions). The AIP Benefit , and the Annual Bonus will be determined using a percentage determined the higher of (A) the annual bonus earned by the Chief Executive Officerpursuant to any annual bonus or incentive plan maintained by Cinergy in respect of the year ending immediately prior to the fiscal year in which occurs the Date of Termination, and (B) the annual bonus that would have been earned by the Executive pursuant to any annual bonus or incentive plan maintained by Cinergy in his discretionrespect of the fiscal year in which occurs the Date of Termination, which will calculated by projecting Cinergy's performance and other applicable goals and objectives for the entire fiscal year based on Cinergy's performance during the period of such fiscal year occurring prior to the Date of Termination, and based on such other assumptions and rates as Cinergy deems reasonable; provided, however that for purposes of this Subsection 5a(ii)(1)(B), the Annual Bonus shall not be less than the Executive's annual target percentage Target Annual Bonus, nor greater than the Maximum Annual Bonus for the fiscal year in which the Date of Termination occurs and will not be greater than the maximum percentage specified in Subsection 3boccurs. This lump sum will be paid within thirty (30) days of the Date of Termination.
(2) Cinergy will pay Subject to the Executive the value of all deferred compensation amounts and all executive life insurance benefits whether or not they are otherwise currently vested or payable. Payment will be made in accordance with the terms of the applicable plan or program.
(3) Except as provided under Clauses (A), (B) and (BC) below, Cinergy will continueprovide, until the end of the Employment Period, medical and dental benefits to the Executive and/or the Executive's family dependents at least equal to those that would have been provided if the Executive's employment had not been terminated (excluding benefits to which the Executive has waived his rights in writing). The benefits described in the preceding sentence will be in accordance with the medical and welfare benefit plans, practices, programs, or policies of Cinergy (the "M&W Plans") as then currently in effect and applicable generally to other Cinergy senior executives and their families.
(A) If, as of the Executive's Date of Termination, the Executive meets the eligibility requirements for Cinergy's retiree medical and welfare benefit plans, the provision of those retiree medical and welfare benefit plans to the Executive will satisfy Cinergy's obligation under this Subparagraph 5a(ii)(35a(ii)(2).
(B) If, as of the Executive's Date of Termination, the provision to the Executive of the M&W Plan benefits described in this Subparagraph 5a(ii)(35a(ii)(2) would either (1) violate the terms of the M&W Plans (or any related insurance policies) or (2) violate any of the Code's nondiscrimination requirements applicable to the M&W Plans, then Cinergy, in its sole discretion, may elect to pay the Executive, in lieu of the M&W Plan benefits described under this Subparagraph 5a(ii)(35a(ii)(2), a lump sum cash payment equal to the total monthly premiums (or in the case of a self funded plan, the cost of COBRA continuation coverage) that would have been paid by Cinergy for the Executive under the M&W Plans from the Date of Termination through the end of the Employment Period, grossed up for the effect of federal, state and local income taxes. Nothing in this Clause will affect the Executive's right to elect COBRA continuation coverage under a M&W Plan in accordance with applicable law, and Cinergy will make the payment described in this Clause whether or not the Executive elects COBRA continuation coverage, and whether or not the Executive receives health coverage from another employer.
(C) If the Executive becomes employed by another employer and is eligible to receive medical or other welfare benefits under another employer-provided plan, any benefits provided to the Executive under the M&W Plans will be secondary to those provided under the other employer-provided plan during the Executive's applicable period of eligibility.
(4) Ownership of the automobile assigned to the Executive by Cinergy will be transferred to the Executive within 30 days of the Date of Termination. The effect of this transfer will be grossed up for federal and state income taxes as soon as administratively feasible after the transfer is effective.
(53) Cinergy will provide tax counseling services through an agency selected by the Executive, not to exceed Fifteen Thousand Dollars fifteen thousand dollars ($15,000.00) in cost.
(iii) In the event of a Qualifying Termination by Cinergy or by the Executive for Good Reason upon or during the twenty-four (24) month period after beginning upon the occurrence of a Change in Control, then in lieu of any further salary payments to the Executive for periods subsequent to the Date of Termination and in lieu of any other benefits payable pursuant to Paragraph 5a(ii), Cinergy will pay the Accrued Obligations, and Cinergy will also have the following additional obligations:
(1) Cinergy will pay to the Executive a lump sum severance payment, in cash, equal to the greater of:
(A) the present value of all amounts and benefits that would have been due under Paragraph 5a(ii), excluding Subparagraphs 5a(ii)(3), 5a(ii)(4), and 5a(ii)(5), or
(B) three (3) times the sum higher of (x) the higher sum of the Executive's current Annual Base Salary and Target Annual Bonus and (y) the sum of the Executive's Annual Base Salary in effect immediately prior to the occurrence Change in Control and the Change in Control Bonus. For purposes of this Agreement, the Change in Control Bonus shall mean the higher of (A) the annual bonus earned by the Executive pursuant to any annual bonus or incentive plan maintained by Cinergy in respect of the event or circumstance upon which the Notice of Termination is based or in effect year ending immediately prior to the fiscal year in which occurs the Date of Termination or, if higher, immediately prior to the fiscal year in which occurs the Change in Control, and (yB) the higher of the amount paid to annual bonus that would have been earned by the Executive pursuant to all any annual bonus or incentive compensation or bonus plans or programs plan maintained by Cinergy in respect of the year preceding that in which the Date of Termination occurs or in the year preceding that in which the Change in Control occurs; and
(2) For a thirty-six (36) month period after the Date of Termination, Cinergy will arrange to provide calculated by projecting Cinergy's performance and other applicable goals and objective for the Executive with life, disability, accident, and health insurance benefits substantially similar to those that entire fiscal year based on Cinergy's performance during the Executive is receiving immediately period of such fiscal year occurring prior to the Notice Date of Termination (without giving effect to any reduction in those benefits subsequent to a Termination, and based on such other assumptions and rates as Cinergy deems reasonable, provided, however, that for purposes of this Subsection 5a(iii)(1)(B), such Change in Control that constitutes Good Reason)Annual Bonus shall not be less than the Target Annual Bonus, except for any benefits that were waived by nor greater than the Executive in writingMaximum Annual Bonus. If Cinergy arranges to provide the Executive with life, disability, accident, and health insurance benefits, those benefits This lump sum will be reduced to the extent comparable benefits are actually received by or made available to the Executive without cost during the thirty-six paid within thirty (3630) month period following the Executive's Date of Termination. The Executive must report to Cinergy any such benefits that he actually receives. In lieu of the benefits described in the preceding sentences, Cinergy, in its sole discretion, may elect to pay to the Executive a lump sum cash payment equal to thirty-six (36) times the monthly premiums that would have been paid by Cinergy to provide those benefits to the Executive. Nothing in this Subparagraph 5a(iii)(2) will affect the Executive's right to elect COBRA continuation coverage in accordance with applicable law.
(3) Ownership of the automobile assigned to the Executive by Cinergy will be transferred to the Executive within 30 days of the Date of Termination. The effect of this transfer will be grossed up for federal and state income taxes as soon as administratively feasible after the transfer is effective.
(42) Cinergy will provide tax counseling services through an agency selected by the Executive, not pay to exceed Fifteen Thousand Dollars ($15,000.00) in cost. For purposes of this Paragraph (iii), the Executive will be deemed to have incurred a Termination following a Change in Control if the Executive's employment is terminated prior to a Change in Controllump sum present value of any benefits under the Executive Supplemental Life Program under the terms of the applicable plan or program as of the Date of Termination, without Cause at the direction of a Person who has entered into an agreement with Cinergy, the consummation of which will constitute a Change in Control, or calculated as if the Executive terminates his employment for Good Reason prior to a Change in Control if the circumstances or event that constitutes Good Reason occurs at the direction was fully vested as of such a Person.the
Appears in 1 contract
Sources: Employment Agreement (Cincinnati Gas & Electric Co)
Certain Terminations. (i) If a Termination occurs during the Employment Period, Cinergy will pay to the Executive a lump sum amount, in cash, equal to the sum of the following Accrued Obligations:
(1) the Executive's Annual Base Salary through the Date of Termination to the extent not previously paid;
(2) an amount equal to the AIP Benefit for the fiscal year that includes the Date of Termination multiplied by a fraction, the numerator of which is the number of days from the beginning of that fiscal year to and including the Date of Termination and the denominator of which is three hundred and sixty-five (365). The AIP Benefit will be determined using a percentage determined by the Chief Executive Officer, in his her discretion, up to the maximum percentage specified in Subsection 3b, but no less than the Target Annual Bonus.
(3) any compensation previously deferred by the Executive (together with any accrued interest or earnings) and any accrued vacation pay, in each case to the extent not previously paid. The Accrued Obligations described in this Paragraph 5a(i) will be paid within thirty (30) days after the Date of Termination. These Accrued Obligations are payable to the Executive regardless of whether a Change in Control has occurred.
(ii) Prior to the occurrence of a Change in Control, and in the event of (A) a Termination other than by reason of the Executive's death, or (B) the Executive's termination of his her employment during the Employment Period for Good Reason, Cinergy will pay the Accrued Obligations, and Cinergy will have the following obligations:
(1) Cinergy will pay to the Executive a lump sum amount, in cash, equal to three (3) times the sum of the Annual Base Salary and the AIP Benefit. For this purpose, the Annual Base Salary will be at the rate in effect at the time Notice of Termination is given (without giving effect to any reduction in Annual Base Salary, if any, prior to the termination). The AIP Benefit will be determined using a percentage determined by the Chief Executive Officer, in his her discretion, which will not be less than the Executive's annual target percentage for the fiscal year in which the Termination occurs and will not be greater than the maximum percentage specified in Subsection 3b. This lump sum will be paid within thirty (30) days of the Date of Termination.
(2) If the Executive terminates employment prior to reaching age 50, Cinergy will pay to the Executive the value of all deferred compensation amounts previously deferred by the Executive whether or not they are otherwise currently payable. Cinergy will also pay to the Executive the present value (discounted at the Prime Rate) of all amounts to which the Executive would have been entitled had she remained in employment with Cinergy until the end of the Employment Period under the Executive Supplemental Life Program. If the Executive terminates employment on or after reaching age 50, Cinergy will pay to the Executive the value of all deferred compensation amounts and all executive life insurance benefits whether or not they are otherwise currently vested or payable. Payment will be made in accordance with the terms of the applicable plan or program.
(3) Except as provided under Clauses (A) and (B) below, Cinergy will continue, until the end of the Employment Period, medical and dental benefits to the Executive and/or the Executive's family at least equal to those that would have been provided if the Executive's employment had not been terminated (excluding benefits to which the Executive has waived his her rights in writing). The benefits described in the preceding sentence will be in accordance with the medical and welfare benefit plans, practices, programs, or policies of Cinergy (the "M&W Plans") as then currently in effect and applicable generally to other Cinergy senior executives and their families.
(A) If, as of the Executive's Date of Termination, the Executive meets the eligibility requirements for Cinergy's retiree medical and welfare benefit plans, the provision of those retiree medical and welfare benefit plans to the Executive will satisfy Cinergy's obligation under this Subparagraph 5a(ii)(3).
(B) If, as of the Executive's Date of Termination, the provision to the Executive of the M&W Plan benefits described in this Subparagraph 5a(ii)(3) would either (1) violate the terms of the M&W Plans or (2) violate any of the Code's nondiscrimination requirements applicable to the M&W Plans, then Cinergy, in its sole discretion, may elect to pay the Executive, in lieu of the M&W Plan benefits described under this Subparagraph 5a(ii)(3), a lump sum cash payment equal to the total monthly premiums that would have been paid by Cinergy for the Executive under the M&W Plans from the Date of Termination through the end of the Employment Period. Nothing in this Clause will affect the Executive's right to elect COBRA continuation coverage under a M&W Plan in accordance with applicable law.
(C) If the Executive becomes employed by another employer and is eligible to receive medical or other welfare benefits under another employer-provided plan, any benefits provided to the Executive under the M&W Plans will be secondary to those provided under the other employer-provided plan during the Executive's applicable period of eligibility.
(4) Ownership of the automobile assigned to the Executive by Cinergy will be transferred to the Executive within 30 days of the Date of Termination. The effect of this transfer will be grossed up for federal and state income taxes as soon as administratively feasible after the transfer is effective.
(5) Cinergy will provide tax counseling services through an agency selected by the Executive, not to exceed Fifteen Thousand Dollars ($15,000.00) in cost.
(iii) In the event of Termination by Cinergy or by the Executive for Good Reason upon or during the twenty-four (24) month period after the occurrence of a Change in Control, then in lieu of any further salary payments to the Executive for periods subsequent to the Date of Termination and in lieu of any other benefits payable pursuant to Paragraph 5a(ii), Cinergy will have the following obligations:
(1) Cinergy will pay to the Executive a lump sum severance payment, in cash, equal to the greater of:
(A) the present value of all amounts and benefits that would have been due under Paragraph 5a(ii), excluding Subparagraphs 5a(ii)(3), 5a(ii)(4), and 5a(ii)(5), or
(B) three (3) times the sum of (x) the higher of the Executive's Annual Base Salary in effect immediately prior to the occurrence of the event or circumstance upon which the Notice of Termination is based or in effect immediately prior to the Change in Control, and (y) the higher of the amount paid to the Executive pursuant to all annual incentive compensation or bonus plans or programs maintained by Cinergy in the year preceding that in which the Date of Termination occurs or in the year preceding that in which the Change in Control occurs; and
(2) For a thirty-six (36) month period after the Date of Termination, Cinergy will arrange to provide the Executive with life, disability, accident, and health insurance benefits substantially similar to those that the Executive is receiving immediately prior to the Notice of Termination (without giving effect to any reduction in those benefits subsequent to a Change in Control that constitutes Good Reason), except for any benefits that were waived by the Executive in writing. If Cinergy arranges to provide the Executive with life, disability, accident, and health insurance benefits, those benefits will be reduced to the extent comparable benefits are actually received by or made available to the Executive without cost during the thirty-six (36) month period following the Executive's Date of Termination. The Executive must report to Cinergy any such benefits that he she actually receives. In lieu of the benefits described in the preceding sentences, Cinergy, in its sole discretion, may elect to pay to the Executive a lump sum cash payment equal to thirty-six (36) times the monthly premiums that would have been paid by Cinergy to provide those benefits to the Executive. Nothing in this Subparagraph 5a(iii)(2) will affect the Executive's right to elect COBRA continuation coverage in accordance with applicable law.
(3) Ownership of the automobile assigned to the Executive by Cinergy will be transferred to the Executive within 30 days of the Date of Termination. The effect of this transfer will be grossed up for federal and state income taxes as soon as administratively feasible after the transfer is effective.
(4) Cinergy will provide tax counseling services through an agency selected by the Executive, not to exceed Fifteen Thousand Dollars ($15,000.00) in cost. For purposes of this Paragraph (iii), the Executive will be deemed to have incurred a Termination following a Change in Control if the Executive's employment is terminated prior to a Change in Control, without Cause at the direction of a Person who has entered into an agreement with Cinergy, the consummation of which will constitute a Change in Control, or if the Executive terminates his her employment for Good Reason prior to a Change in Control if the circumstances or event that constitutes Good Reason occurs at the direction of such a Person.
Appears in 1 contract