Exhibit 10.FFFF
CINERGY CORP.
RETIREMENT AND CONSULTING AGREEMENT
This Separation and Retirement Agreement (the "Agreement"), which is effective
as of this 5th day of May, 2005, is entered into by and between William J.
Grealis (the "Executive") and Cinergy Services, Inc. (the "Company"), with the
mutual exchange of promises as consideration.
Recitals
WHEREAS, THE EXECUTIVE INTENDS TO TERMINATE VOLUNTARILY HIS EMPLOYMENT AND
RETIRE EFFECTIVE AS OF JUNE 1, 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.
RETIREMENT.
A.
TERMINATION OF EMPLOYMENT.
THE EXECUTIVE WILL RETIRE, AND HIS
EMPLOYMENT WITH CINERGY WILL TERMINATE, EFFECTIVE AS OF THE CLOSE OF BUSINESS ON
THE TERMINATION DATE.
B.
EFFECT ON OTHER AGREEMENTS.
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 OCTOBER 11, 2002 (THE "EMPLOYMENT AGREEMENT"); PROVIDED,
HOWEVER, THAT SECTION 3(B)(II) OF THE EMPLOYMENT AGREEMENT, AND EACH PROVISION
OF THE EMPLOYMENT AGREEMENT THAT DEFINES ANY DEFINED TERM THAT IS USED IN
SECTION 3(B)(II) OF THE EMPLOYMENT AGREEMENT, BUT ONLY WITH RESPECT TO SUCH
DEFINITION, SHALL REMAIN IN FULL FORCE AND EFFECT.
NOTWITHSTANDING THE
FOREGOING, THE SUPPLEMENTAL RETIREMENT BENEFIT PROVIDED UNDER SECTION 3(B)(II)
OF THE EMPLOYMENT AGREEMENT SHALL BE CALCULATED AS IF THE EXECUTIVE RETIRED ON
FEBRUARY 1, 2005 IF SUCH RETIREMENT DATE WOULD RESULT IN THE EXECUTIVE RECEIVING
A LARGER SUPPLEMENTAL RETIREMENT BENEFIT THAN IF HE RETIRED ON THE FIRST
POTENTIAL RETIREMENT DATE FOLLOWING THE TERMINATION DATE; PROVIDED, HOWEVER,
THAT CONSISTENT WITH Q&A-18(B) OF IRS NOTICE 2005-1, ANY ADDITIONAL BENEFIT TO
WHICH THE EXECUTIVE IS ENTITLED PURSUANT TO THIS SENTENCE (I) SHALL BE TREATED
AS A
1
"MATERIAL MODIFICATION" OF SECTION 3(B)(II) OF THE EMPLOYMENT AGREEMENT ONLY TO
THE EXTENT OF SUCH ADDITIONAL BENEFIT, AND (II) SHALL BE ADMINISTERED AND
DISTRIBUTED IN A MANNER THAT COMPLIES WITH THE PROVISIONS OF SECTION 409A OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED, SO AS TO PREVENT THE INCLUSION IN
GROSS INCOME OF SUCH ADDITIONAL BENEFIT IN A TAXABLE YEAR THAT IS PRIOR TO THE
TAXABLE YEAR OR YEARS IN WHICH SUCH BENEFIT WOULD OTHERWISE ACTUALLY BE
DISTRIBUTED OR MADE