AND SPECIFYING THE PARTICULARS THEREOF IN DETAIL.
C.
BY CINERGY WITHOUT CAUSE.
CINERGY MAY,
UPON AT LEAST 30 DAYS ADVANCE WRITTEN NOTICE TO THE EXECUTIVE, TERMINATE THE
EXECUTIVE'S EMPLOYMENT DURING THE EMPLOYMENT PERIOD FOR A REASON OTHER THAN
CAUSE, BUT THE OBLIGATIONS PLACED UPON CINERGY IN SECTION 5 WILL APPLY.
D.
BY THE EXECUTIVE FOR GOOD REASON.
THE
EXECUTIVE MAY TERMINATE HIS EMPLOYMENT DURING THE EMPLOYMENT PERIOD FOR GOOD
REASON.
FOR PURPOSES OF THIS AGREEMENT, "GOOD REASON" MEANS THE FOLLOWING:
(I)
(1) A REDUCTION IN THE EXECUTIVE'S
ANNUAL BASE SALARY, EXCEPT FOR ACROSS-THE-BOARD SALARY REDUCTIONS SIMILARLY
AFFECTING ALL CINERGY MANAGEMENT PERSONNEL, (2) A REDUCTION IN THE AMOUNT OF THE
EXECUTIVE'S MAXIMUM ANNUAL BONUS UNDER THE ANNUAL INCENTIVE PLAN, EXCEPT FOR
ACROSS-THE-BOARD MAXIMUM ANNUAL BONUS REDUCTIONS SIMILARLY AFFECTING ALL CINERGY
MANAGEMENT PERSONNEL, OR (3) A REDUCTION IN ANY OTHER BENEFIT OR PAYMENT
DESCRIBED IN SECTION 3 OF THIS AGREEMENT, EXCEPT FOR CHANGES TO THE EMPLOYEE
BENEFITS PROGRAMS GENERALLY AFFECTING CINERGY MANAGEMENT PERSONNEL, PROVIDED
THAT THOSE CHANGES, IN THE AGGREGATE, WILL NOT RESULT IN A MATERIAL ADVERSE
CHANGE WITH RESPECT TO THE BENEFITS TO WHICH THE EXECUTIVE WAS ENTITLED AS OF
THE EFFECTIVE DATE.
(II)
(1) THE MATERIAL REDUCTION WITHOUT HIS
CONSENT OF THE EXECUTIVE'S TITLE, AUTHORITY, DUTIES, OR RESPONSIBILITIES FROM
THOSE IN EFFECT IMMEDIATELY PRIOR TO THE REDUCTION, (2) IN THE EVENT THE
EXECUTIVE IS OR BECOMES A MEMBER OF
8
THE BOARD DURING THE EMPLOYMENT PERIOD, THE FAILURE BY CINERGY WITHOUT THE
CONSENT OF THE EXECUTIVE TO NOMINATE THE EXECUTIVE FOR RE-ELECTION TO THE BOARD,
OR (3) A MATERIAL ADVERSE CHANGE IN THE EXECUTIVE'S REPORTING RESPONSIBILITIES.
(III)
ANY BREACH BY CINERGY OF ANY OTHER MATERIAL
PROVISION OF THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO THE PLACE OF
PERFORMANCE AS SPECIFIED IN SECTION 2B).
(IV)
THE EXECUTIVE'S DISABILITY DUE TO PHYSICAL OR
MENTAL ILLNESS OR INJURY THAT PRECLUDES THE EXECUTIVE FROM PERFORMING ANY JOB
FOR WHICH HE IS QUALIFIED AND ABLE TO PERFORM BASED UPON HIS EDUCATION, TRAINING
OR EXPERIENCE.
(V)
A FAILURE BY THE COMPANY TO REQUIRE ANY
SUCCESSOR ENTITY TO THE COMPANY SPECIFICALLY TO ASSUME IN WRITING ALL OF THE
COMPANY'S OBLIGATIONS TO THE EXECUTIVE UNDER THIS AGREEMENT.
For purposes of determining whether Good Reason exists with respect to a
Qualifying Termination occurring on or within 24 months following a Change in
Control, any claim by the Executive that Good Reason exists shall be presumed to
be correct unless the Company establishes to the Board by clear and convincing
evidence that Good Reason does not exist.
E.
BY THE EXECUTIVE WITHOUT GOOD REASON.
THE EXECUTIVE MAY TERMINATE HIS EMPLOYMENT WITHOUT GOOD REASON UPON PRIOR
WRITTEN NOTICE TO THE COMPANY.
F.
NOTICE OF TERMINATION.
ANY
TERMINATION OF THE EXECUTIVE'S EMPLOYMENT BY CINERGY OR BY THE EXECUTIVE DURING
THE EMPLOYMENT PERIOD (OTHER THAN A TERMINATION DUE TO THE EXECUTIVE'S DEATH)
WILL BE COMMUNICATED BY A WRITTEN NOTICE OF TERMINATION TO THE OTHER PARTY TO
THIS AGREEMENT IN ACCORDANCE WITH SECTION 12B.
FOR PURPOSES OF THIS AGREEMENT,
A "NOTICE OF TERMINATION"