**Exhibit 10(w)**

 

**DPL****INC.**

**PARTICIPATION AGREEMENT AND WAIVER**

 

ThisPARTlClPATlON AGREEMENT AND WAIVER (“Agreement”) is entered intothis 24th day of February 2006 (the “Effective Date”) among DPL Inc., anOhio corporation (“DPL”), The Dayton Power and Light Company, an Ohiocorporation (“DP&L”), and Joseph R. Boni III (“Executive”).

 

WHEREAS, DPL has implementeda new executive compensation program (the “Program”), generally effective as ofJanuary 1, 2006;

 

WHEREAS, the Programprovides benefits pursuant to the following plans which have been approved bythe Compensation Committee of the Board of Directors of DPL (the “Committee”)and adopted by the Board of Directors of DPL (the “Board): the DPL Inc.Severance Pay and Change of Control Plan, the DPL Inc. Supplemental ExecutiveDefined Contribution Retirement Plan, the DPL Inc. 2006 Equity andPerformance Incentive Plan(“EPIP”), and the DPL Inc. Executive IncentiveCompensation Plan (collectively, the “Plans”);

 

WHEREAS, Executive’sparticipation in the Plans requires execution of this Agreement in order to be eligible toreceive benefits under such Program; and

 

WHEREAS, Executivepreviously entered into an Employment Agreement with DPL and DP&L(collectively, the “Company”), dated August 29, 2005 (the “PriorAgreement”);

 

NOW THEREFORE, inconsideration of the promises and agreements contained herein and other goodand valuable consideration, the sufficiency and receipt of which are herebyacknowledged, and intending to be legally bound, Executive agrees as follows:

 

1.**                                      **Effective Date.    ThisAgreement is effective on the date hereof and will continue in effect asprovided herein.

 

2.                                       Participationin the Plans.    DPL confirms that Executive (a) has beendesignated by the Committee and the Board to participate in each of the Planspursuant to the terms thereof, contingent on his execution of this Agreementand, with respect to the EPIP, its approval by the shareholders of the Companyat their annual meeting on April 26, 2006, and (b) is eligible toreceive additional benefits as such are provided to other similarly situatedemployees of the Company from time to time.

 

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3.                                       Termination ofPrior Agreement.    Executive, for himself and hisdependents, successors, assigns, heirs, executors and administrators (and hisand their legal representatives of every kind),and the Company hereby agree that, upon execution of this Agreement, the PriorAgreement shall terminate and have no further force and effect.

 

4.**                                      **Remaining Rights.    Notwithstandingthe terms of Section 3 of this Agreement,Executive and the Company hereby agree that nothing in this Agreement negatesor diminishes Executive’s right under any agreement other than the PriorAgreement, including, but not limited to, the right to (a) receive thebenefits or his obligations with respect to his relocation from Cleveland, Ohioto Dayton, Ohio as described on **Schedule****A**attached hereto and (b) receive theamounts payable under the DPL Inc. 2003 Long-Term Incentive Plan that arepayable as the amounts vest.

 

5.                                       PerquisiteAllowance.    By executing this Agreement,Executive shall be entitled to receive a perquisite allowance in the amount of$20,000 per year (the “Perquisite Allowance”), for each year that (a) Executiveremains designated by the Committee as eligible to receive the PerquisiteAllowance and (b) DPL continues to make thePerquisite Allowance available to executive-level employees of the Company.Executive has been designated by the Committee as eligible to receive thePerquisite Allowance for 2006. The Perquisite Allowance for 2006 shall be paidas soon as practicable after the Effective Date. ThePerquisite Allowance for years after 2006 shall be paidto Executive as soon as practicable after the Committee designates Executive aseligible to receive the Perquisite Allowance for that year. The PerquisiteAllowance will not be deemed “compensation,” as that term is defined under anyof the Plans, nor under any other plan, practice, program or policy of theCompany or any of its affiliates, as in effectfrom time to time.

 

6.**                                      **Non-Solicitation.    Asa condition to his eligibility to participate in the Program, Executivehereby agrees that during his employment and for a period of two years following his termination of employment with the Company,Executive will not (a) solicit for employment withhimself or any firm or entity with which he is associated, any employee of DPL, itssubsidiaries or affiliates, or otherwise disrupt, impair, damage or interferewith DPL’s, its subsidiaries’ oraffiliates’ relationships with their employees or (b) solicit forExecutive’s own behalf or on behalf of any other person(s), any retail customerof DPL, its subsidiaries oraffiliates, that has purchased products or services from the DPL, itssubsidiaries or affiliates, at any time (i) with respect to solicitationduring employment, during the Executive’s employment or (ii) with respect to solicitation after termination of employment, inthe twelve months preceding the date on which Executive’s employment with DPL,its subsidiaries or affiliates is terminated or that DPL, its subsidiaries oraffiliates are actively soliciting or have known plans to solicit, for thepurpose of marketing or distributingany product, pricing or service competitive with any product, pricing orservice then offered by DPL, itssubsidiaries or affiliates or which DPL, its subsidiaries or affiliates haveknown plans to offer.

 

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7.                                      No Inducement.   Executive agrees and acknowledges that no representations,promises or inducements have been made by the Company toinduce Executive to enter into this Agreement other thanas set forth herein.

 

 

IN WITNESSWHEREOF, the parties hereto have executed this Agreement on the date firstwritten above.

 
|   | DPL  INC.                          |
|--------|------------------------------------|
|   |                               |
|   |                               |
|   | By:                                | /s/ James V. Mahoney |
|   |                               | Name: James V. Mahoney |
|   |                               | Title: President and CEO |
|   |                               |
|   |                               |
|   | THE DAYTON POWER  AND LIGHTCOMPANY |
|   |                               |
|   |                               |
|   | By:                                | /s/ James V. Mahoney |
|   |                               | Name: James V. Mahoney |
|   |                               | Title: President and CEO |
|   |                               |
|   |                               |
|   | /s/ Joseph R Boni III              |
|   | Joseph R Boni III                  |

 

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**Schedule****A**

 

The Company agrees toprovide the following benefits with respect to Executive’s relocation from theCleveland, Ohio area to the Dayton, Ohio area (the “Relocation”):

 

(i)                                     reimbursementfor reasonable expenses incurred in relocating Executive’s family and singlefamily residence from a single location in the Cleveland, Ohio area to theDayton, Ohio area;

 

(ii)                                  reimbursementfor up to 270 days rental of temporary housing in the greater Dayton, Ohio areaand for travel between the Dayton, Ohio area and the Cleveland, Ohio area,including reimbursement for mileage, airfare and airport parking charges, notto exceed $25,000 in the aggregate;

 

(iii)                               reimbursementfor customary real estate commissions incurred in connection with the sale ofExecutive’s current residence in the Cleveland area and for the cost ofan appraisal for a residence in the Dayton area;

 

(iv)                              the Company’spayment of a moving incentive bonus equal to $20,000;

 

(v)                                 reimbursementfor mileage for driving Executive’s two cars from Cleveland, Ohio to Dayton,Ohio;

 

(vi)                              a payment inthe amount of $5,000 for miscellaneous relocation expenses incurred by theExecutive; and

 

(vii)                           to the extentany of the foregoing payments or reimbursements are subject to income taxes orother taxes similar to income taxes, the Company shall pay Executive anadditional amount sufficient to gross him up for the amount of such taxes:

 

provided, however, that anyamounts paid prior to the date of execution of this Agreement for expensesdescribed in provisions (ii), (iv) and (vi) above shall be deductedfrom the amount remaining payable to Executive for such expenses.

 

In the event that Executiveterminates his employment for any reason or his employment isterminated by the Company for “Cause” as hereinafter defined within one year ofthe date of the Relocation, Executive shall fully reimburse the Company for any payments madeby the Company pursuant to the terms set forth in provisions (i) through (vii) above.For purposes of this Agreement, “Cause” shall mean (a) proven commissionof a felony, (b) proven embezzlement, (c) theproven illegal use of drugs, or (d) proven breach of fiduciary duty or responsibilityto the Company. Notwithstanding the foregoing, Cause shall not be deemed to existunless and until there shall have been delivered to Executive a copy of aresolution duly adopted by written consent of not less than three-fourths ofthe number of directors then in office (after reasonable

 

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notice to him and anopportunity for him, together with his counsel, tobe heard at a meeting of the Board ofDirectors called and held for that purpose), findingthat in the good faith opinion of the Board ofDirectors he was guilty of conduct set forth above inclauses (a), (b), (c) or (d) of the first sentence of this definitionand specifying the particulars thereof in detail.

 

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