Exhibit 10.1
CINERGY CORP.
SEPARATION AGREEMENT
This Separation Agreement (the "Agreement"), which is effective as of the 30th
day of June, 2005, is entered into by and between R. Foster Duncan (the
"Executive") and Cinergy Services, Inc. (the "Company"), with the mutual
exchange of promises as consideration.
Recitals
WHEREAS, THE EXECUTIVE HAS RESIGNED FROM THE COMPANY EFFECTIVE AS OF JUNE 30,
2005 (THE "TERMINATION DATE");
WHEREAS, IN CONNECTION WITH THE EXECUTIVE'S TERMINATION OF EMPLOYMENT, THE
COMPANY IS WILLING TO PROVIDE CERTAIN BENEFITS TO THE EXECUTIVE, PROVIDED THAT
THE EXECUTIVE (I) EXECUTES AND DOES NOT TIMELY REVOKE THIS AGREEMENT AND A
WAIVER AND RELEASE, IN THE FORM ATTACHED TO THIS AGREEMENT AS EXHIBIT A (THE
"WAIVER AND RELEASE") OF ALL CLAIMS THAT THE EXECUTIVE MIGHT ASSERT AGAINST THE
COMPANY, ITS PARENT COMPANY, ANY OF THEIR SUBSIDIARIES AND/OR AFFILIATED
ENTITIES, AND ANY SUCCESSORS OR ASSIGNS TO THE FOREGOING (COLLECTIVELY,
"CINERGY") AND CERTAIN RELATED ENTITIES AND INDIVIDUALS AS SET FORTH THEREIN AND
(II) COMPLIES WITH HIS OBLIGATIONS HEREUNDER; AND
WHEREAS, THE PARTIES HAVE AGREED TO ENTER INTO THIS AGREEMENT, WHICH HAS BEEN
SPECIFICALLY NEGOTIATED BETWEEN THE EXECUTIVE AND CINERGY.
NOW, THEREFORE, THE COMPANY AND THE EXECUTIVE ENTER INTO THE FOLLOWING
AGREEMENT:
Agreement
1.
TERMINATION OF EMPLOYMENT.
A.
TERMINATION OF EMPLOYMENT.
THE
EXECUTIVE WILL TERMINATE EMPLOYMENT WITH CINERGY EFFECTIVE AS OF THE CLOSE OF
BUSINESS ON THE TERMINATION DATE.
B.
EFFECT ON OTHER AGREEMENTS.
SUBJECT TO
SECTION 22, EFFECTIVE AS OF THE TERMINATION DATE, THIS AGREEMENT WILL REPLACE
AND SUPERSEDE ANY AND ALL PRIOR EMPLOYMENT, SEPARATION AND RETIREMENT AGREEMENTS
BETWEEN CINERGY AND THE EXECUTIVE, INCLUDING BUT NOT LIMITED TO THE EMPLOYMENT
AGREEMENT BETWEEN THE EXECUTIVE AND CINERGY DATED AS OF JANUARY 1, 2002, AS
AMENDED (THE "EMPLOYMENT AGREEMENT").
2.
CONSIDERATION.
IN EXCHANGE FOR
ENTERING INTO THIS AGREEMENT AND SATISFYING THE CONDITIONS SET FORTH HEREIN, THE
EXECUTIVE WILL RECEIVE THE CONSIDERATION DESCRIBED BELOW IN THIS SECTION.
THE
EXECUTIVE ACKNOWLEDGES AND AGREES THAT HE SHALL BE ENTITLED TO NO OTHER BENEFITS
OR COMPENSATION FROM CINERGY OR ANY OF ITS BENEFIT PLANS OR ARRANGEMENTS, OTHER
THAN THE VESTED BENEFITS, IF ANY, TO WHICH HE IS ENTITLED UNDER THE TERMS OF THE
CINERGY CORP. NON-UNION EMPLOYEES' 401(K) PLAN AND THE CINERGY CORP. 401(K)
EXCESS PLAN.
EACH OF THE BENEFITS DESCRIBED BELOW IN THIS SECTION ONLY SHALL BE
PROVIDED TO THE EXECUTIVE IF, UPON PRESENTATION TO THE EXECUTIVE, THE EXECUTIVE
TIMELY EXECUTES AND DOES NOT TIMELY REVOKE THE WAIVER AND RELEASE.
NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, CINERGY MAY WITHHOLD
FROM ANY AMOUNTS PAYABLE UNDER THIS AGREEMENT SUCH FEDERAL, STATE, LOCAL OR
OTHER TAXES AS IT REASONABLY DETERMINES ARE REQUIRED TO BE WITHHELD PURSUANT TO
ANY APPLICABLE LAW OR REGULATION.
A.
SEVERANCE PAYMENT.
CINERGY AGREES TO
PAY THE EXECUTIVE A LUMP SUM CASH PAYMENT EQUAL TO $3,550,193.
B.
RETIREE WELFARE BENEFITS.
THE EXECUTIVE
AND HIS SPOUSE AND ELIGIBLE DEPENDENTS WILL BE ENTITLED TO CONTINUE
THEIR MEDICAL AND DENTAL COVERAGE UNDER THE CINERGY CORP. WELFARE BENEFITS PLAN
ON THE SAME BASIS AS AN ACTIVE NON-UNION EMPLOYEE OF CINERGY SERVICES,