EXHIBIT 10(vi)
EMPLOYMENT AGREEMENT
BETWEEN
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AND
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AUGUST 1, 2000
EMPLOYMENT AGREEMENT
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EMPLOYMENT AGREEMENT ("Agreement"), dated as of the ____________ day of
August, 2000, between _____________________________, a North Carolina
corporation headquartered in Raleigh, North Carolina, and a subsidiary of CP&L
Energy, its successors or assigns and __________________ ("Employee").
__________ and CP&L Energy shall be referred to as CP&L throughout.
Recitals
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1. The Company and Employee wish to enter into an employment
relationship whereby Employee will be employed initially as __________ at
___________________.
2. Employee will be employed as an "at will" employee of __________.
The parties wish to enter into this Agreement to set forth certain terms related
to that relationship.
Provisions
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NOW, THEREFORE, in consideration of the mutual covenants and promises
contained herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged and accepted, the parties hereto
hereby agree as follows:
1. TERM OF THE AGREEMENT:
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(a) The Agreement becomes effective on August 1, 2000, and
shall remain in effect for a three-year period;
(b) Each year, the Agreement will be extended such that
prospective term will always be three years forward ("Evergrow provisions") on
the anniversary date of the effective date.
(c) Company may elect to not extend Agreement and must notify
Employee at least 60 days prior to the annual anniversary date of the
Agreement's effective date. In each event, the Agreement will be effective for
the remainder of its term.
(d) The Agreement cannot extend beyond Employee's normal
retirement date unless Employee is requested to serve in his full-time position
for a defined period as set forth by the Board of Directors.
2. RESPONSIBILITIES; OTHER ACTIVITIES.
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Employee shall initially occupy the position of __________ at
__________ and shall undertake the general responsibilities and duties of such
position as directed by CP&L. During the Employment Term, Employee shall perform
faithfully the duties of Employee's position, devote all of Employee's working
time and energies to the business and affairs of CP&L and shall use Employee's
best efforts, skills and abilities to promote CP&L's. CP&L reserves the right to
reassign Employee to other positions.
3. SALARY.
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As compensation for the services to be performed hereunder:
Employee will be paid a salary at the annual rate of ____________ Dollars
($___________) (less applicable withholdings) beginning on August 1, 2000.
Annual salary for each subsequent year of the Employment Term shall be subject
to adjustment by CP&L during the normal annual salary review process for
similarly situated executives as determined by CP&L in its discretion. Annual
Salary shall be deemed earned proportionally as Employee performs services over
the course of the Salary Year. Payments of annual Salary shall be made, except
as otherwise provided herein, in accordance with CP&L's standard payroll
policies and procedures.
4. BENEFITS
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During the Employment Term, Employee shall be entitled to
participate in all Company sponsored benefits programs as CP&L may have in
effect upon terms and in accordance with policies and procedures substantially
equivalent to those then in effect and applicable generally to employees of
CP&L. Provided, however, that nothing contained in this Agreement shall require
CP&L to continue to offer such benefits or programs or to limit CP&L's absolute
right to modify or eliminate these benefits.
(a). Management Incentive Compensation Plan. Employee will be
eligible to participate in the Management Incentive Compensation Plan (MICP).
Pursuant to the terms of MICP, Employee's target compensation under such plan
will be 35% of base salary earnings. The annual target will increase to 40%,
effective January 1, 2001, contingent upon the closing of the Florida Progress
Corporation ("FPC") acquisition.
(b). Long Term Incentives. Employee will be eligible to
participate in the Performance Share Sub-Plan under the 1997 Equity Incentive
Plan in accordance with the terms of the plan. Pursuant to the terms of the
plan, Employee's target compensation under such plan will be 50% of Employee's
base salary at the time of the award. The annual target will increase to 85%
effective January 1, 2001, contingent upon the closing of the FPC acquisition.
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(c). Restricted Share Grant. Employee will be eligible to
participate in the Restricted Share Grant Plan under the 1997 Equity Incentive
Plan in accordance with the terms of the plan. Additionally, Employee has
previously received other grants of CP&L restricted common stock pursuant to
Restricted Stock Agreement(s). Restrictions are based on continued employment.
(d). Management Deferred Compensation Plan. Employee will be
eligible for participation in CP&L's Management Deferred Compensation Plan
(MDCP), subject to its terms. Employee also has a vested benefit under the
suspended Deferred Compensation Plan for Key Management Employees. Additionally,
Employee has a retention agreement bonus with CP&L under the Selected Executives
Supplemental Deferred Compensation Program Agreement. This latter bonus vests
based on continued employment until or beyond age 60.
(e). Supplemental Retirement Plan. Pursuant to its terms,
Employee is eligible for participation in CP&L Supplemental Retirement Plan
(SRP), subject to its terms.
(f). Restoration Retirement Plan. Employee will be eligible
for participation in CP&L's Restoration Retirement Plan, subject to its terms.
If Employee becomes eligible for benefits under CP&L's Supplemental Senior
Executive Retirement Plan, Employee forfeits all benefits under the Restoration
Retirement Plan.
(g). Supplemental Senior Executive Retirement Plan. Employee
shall be eligible for participation in CP&L's Supplemental Senior Executive
Retirement Plan (SERP), subject to its terms.
(h). Executive Permanent Life Insurance Plan. Employee shall
be eligible to participate in CP&L's Executive Permanent Life Insurance Plan,
subject to its terms.
(i). Executive AD&D Life Insurance. Employee shall be eligible
to participate in CP&L's Executive AD&D Life Insurance Plan, subject to its
terms.
(j). Stock Purchase-Savings Plan. Employee shall be eligible
to participate in CP&L's Stock Purchase-Savings Plan, subject to its terms.
(k). Financial Planning. Consistent with CP&L's practice with
respect to other senior executives, Employee will be reimbursed for financial
planning and tax preparation.
(l). Vacation. Employee shall be entitled to five (5) weeks of
paid vacation days.
(m). Holiday. Employee will be eligible for 11 paid holidays
in each calendar year as provided in the CP&L Handbook.
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(n). Automobile Allowance. Employee will be eligible to
receive an automobile allowance of One Thousand, Three Hundred Fifty Dollars
($1350) per month (less withholdings) subject to the terms of CP&L's policies.
Employee will also be eligible for a cellular phone and reserved parking at
CP&L's expense.
(o). Annual Physical. CP&L will pay for an annual physical
examination by a physician of Employee's choice.
(p). Capital City Club. CP&L will pay an initiation fee and
monthly dues for a membership at the Capital City Club for Employee.
(q). Airline Club Membership. CP&L will provide airline club
membership in accordance with CP&L policy.
(r). Country Club Membership. At Employee's option, if joined,
CP&L will pay an initiation fee and monthly dues for a membership for Employee
at a country club approved by CP&L. Business related expenses will be reimbursed
consistent with CP&L's expense account guidelines.
(s). Personal Computer. CP&L will provide a personal computer
to Employee to be used at his personal residence.
(s). Home Security. CP&L will install a home security system
at Employee's personal residence.
(t). Other Benefits. Employee shall be eligible for
participation in other CP&L benefit plans, subject to the terms of the
respective plans, as described in more detail in the Employee Handbook or
Summary Plan Descriptions.
5. TERMINATION OF EMPLOYMENT.
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(a). Termination Without Cause. During the terms of this
Agreement, if Employee's employment is terminated without cause, then Employee
will be provided with his base salary at Employee's current rate for the
remainder of the term of this Agreement. Additionally, CP&L will reimburse
Employee for his COBRA premium for up to eighteen (18) months after the
termination of Employee's employment as long as Employee is not eligible for
coverage under the same type of benefit plan covered by COBRA. Receipt of these
benefits is subject to the requirements of paragraph 5(g),(h) and (i) of this
Agreement. In addition, Employee will be eligible to retain all benefits under
existing benefit programs to the extent vested within the terms of those
programs.
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(b) Termination for Cause. During the term of this Agreement,
CP&L may elect at any time to terminate Employee's employment immediately
hereunder and remove Employee from employment for cause. For purposes of this
paragraph 5, cause for the termination of employment shall be defined as: (i)
any act of Employee's including, but not limited to, misconduct, negligence,
unlawfulness, dishonesty or inattention to the business, which is detrimental to
CP&L's interests; or (ii) Employee's unsatisfactory job performance or failure
to comply with CP&L's direction, policies, rules or regulations. If Employee is
terminated for Cause as defined herein, then he shall be eligible to retain all
benefits under existing benefit programs which he has vested pursuant to those
plans, but he shall not be entitled to any form of salary continuance or any
form of severance benefits. Upon such termination, Employee shall be entitled to
any earned but unpaid salary accrued to the date of termination. Any continued
rights or benefits Employee's legal representatives may have under employee
benefit plans and programs of CP&L upon Employee's termination for cause shall
be determined in accordance with the terms or provisions of the plan or program.
(c). Constructive Termination.
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(i) Within the term of this Agreement, if Employee's
employment is constructively terminated, then Employee will be provided with his
base salary at the current rate for the remainder of the term of this Agreement.
Additionally, CP&L will reimburse Employee for his COBRA premiums for up to
eighteen (18) months after the termination of Employee's employment as long as
Employee is not eligible for coverage under the same types of benefits plans
covered by COBRA. Receipt of these benefits is subject to the requirements of
paragraph 5(g), (h) and (i) of this Agreement. In addition, Employee will be
eligible to retain all benefits under existing benefit programs to the extent
vested within the terms of those programs.
(ii) For the purposes of paragraph 5 of this Agreement, a
constructive termination will be deemed to occur if: aa) there is a change in
the form of ownership of CP&L (e.g., CP&L is acquired, enters into a business
combination with another company or otherwise changes form of ownership) and bb)
Employee is offered a new position with a material change in authority, duties,
wages or benefits, or Employee is asked to relocate more than 50 miles. If
Employee's employment is constructively terminated under this paragraph,
Employee is entitled to the greater of either the benefits contained in this
paragraph or the benefits he is entitled to, if any, under the CP&L Management
Change-in-Control Plan, according to the terms of the Plan. Changes in the
corporation structure of CP&L not related to an acquisition of CP&L shall not
constitute a grounds for constructive termination.
(d). Voluntary Termination - If Employee terminates his
employment voluntarily for any reason at any time, then he shall be eligible to
retain all benefits under existing benefit plans which have vested pursuant to
the terms of those plans, but he shall not be entitled to any form of salary
continuance or any form of severance benefit.
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(e). Termination Due to Death. In the event of the death of
Employee during the Employment Term, Employee's employment hereunder shall
terminate and CP&L shall have no further obligation to Employee under this
Agreement except as specifically provided in this Agreement. Employee's estate
shall be entitled to receive all earned but unpaid Salary accrued to the date of
termination and any Bonus for a prior fiscal year that has been earned but not
paid. The Bonus, if any, for the current fiscal year shall be calculated on a
pro rata basis for the portion of the fiscal year in which death occurred and
shall be paid at the regularly scheduled time for the payment of the Bonus. Any
rights and benefits Employee, or Employee's estate or other legal
representatives, may have under employee benefit plans and programs of CP&L upon
Employee's death during the Employment Term, if any, shall be determined in
accordance with the terms and provisions of such plans and programs.
(f). Termination Due to Medical Condition.
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(i). CP&L may terminate Employee's employment hereunder,
subject to the Americans With Disabilities Act or other applicable law, due to
medical condition if (i) for a period of 180 consecutive days during the
Employment Term, Employee is totally and permanently disabled as determined in
accordance with the Company's long-term disability plan, if any, as in effect
during such time or (ii) at any time during which no such plan is in effect,
Employee is substantially unable to perform Employee's duties hereunder because
of a medical condition for a period of 180 consecutive days during the
Employment Term. Provided, however, that if Employee applies for and is deemed
eligible for benefits under CP&L's Long-Term Disability Plan (LTD Benefits),
Employee shall receive such benefits and his employment will not be terminated
as long as he is receiving LTD Benefits.
(ii). Upon the termination of Employee's employment due
to medical condition or placement of Employee on Long Term Disability (LTD),
CP&L shall have no further obligation to Employee under this Agreement except as
specifically provided in this Agreement. Upon such termination or placement on
LTD, Employee shall be entitled to all earned but unpaid Salary accrued to the
date of termination or placement on LTD and any Bonus for a prior fiscal year
that has been earned but not paid. The Bonus, if any, for the current fiscal
year shall be calculated on a pro rata basis for the portion of the fiscal year
Employee was employed or placed on LTD by CP&L and shall be paid at the
regularly scheduled time for the payment of the Bonus. Any continued rights and
benefits Employee, or Employee's legal representatives, may have under employee
benefit plans and programs of CP&L upon Employee's termination or placement on
LTD due to medical condition, if any, shall be determined in accordance with the
terms and provisions of such plans and programs.
(g). Release of Claims - In order to receive continuation of
salary under this paragraph 5(a) and 5(c), Employee agrees to execute a written
release of all claims against CP&L, and its employees, officers, directors,
subsidiaries and affiliates, on a form acceptable to CP&L.
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(h) Covenant Not to Compete. If CP&L terminates Employee's
employment without Cause under paragraph 5(a) or Constructively terminates
Employee's employment under paragraph 5(c) of this Agreement, Employee, for one
year after the Termination Date, shall not compete directly or indirectly with
the Company, or its affiliates within fifty (50) miles of any geographic area in
which the Company or its affiliates has a material business interests with which
Employee is involved at the time of the termination of Employee's employment.
(i) Non Interference. If CP&L terminates Employee's employment
without Cause under paragraph 5(a) or Constructively terminates Employee's
employment under paragraph 5(c) of this Agreement, Employee, for one year after
the Termination Date, shall not whether on his own account or on the account of
another individual, partnership, firm, corporation, or other business
organization (other than the Company and its affiliates), directly or
indirectly, intentionally solicit, endeavor to entice away from the Company or
any of its affiliates, or otherwise interfere with the relationship of the
Company or its affiliates with, any person who is employed by or otherwise
engaged to perform services for the Company or its affiliates including but not
limited to, any independent representatives or organizations, or any person or
entity that is a customer of the Company or its affiliates.
6. ASSIGNABILITY.
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No rights or obligations of Employee under this Agreement may
be assigned or transferred by Employee, except that (a) Employee's rights to
compensation and benefits hereunder may be transferred by will or laws of
intestacy to the extent specified herein and (b) Employee's rights under
employee benefit plans or programs described in Section 4 may be assigned or
transferred in accordance with the terms of such plans or programs, or regular
practices thereunder. The Company may assign or transfer its rights and
obligations under this Agreement.
7. CONFIDENTIALITY. Employee will not disclose the terms of this
Agreement except (i) to financial and legal advisors under an obligation to
maintain confidentiality, or (ii) as required by a valid court order or subpoena
(and in such event will use Employee's best efforts to obtain a protective order
requiring that all disclosure be kept under court seal) and will notify CP&L
promptly upon receipt of such order or subpoena.
8. MISCELLANEOUS.
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(a) Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of North Carolina without
reference to laws governing conflicts of law.
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(b) Entire Agreement. This Agreement contains all of the
understandings and representations between the parties hereto pertaining to the
subject matter hereof and supersedes all undertakings and agreements, whether
oral or in writing, if any, previously entered into by them with respect
thereto.
(c) Amendment or Modification; Waiver. No provision in this
Agreement may be amended or waived unless such amendment or waiver is agreed to
in writing, signed by Employee and by an officer of CP&L thereunto duly
authorized to do so. Except as otherwise specifically provided in the Agreement,
no waiver by a party hereto of any breach by the other party hereto of any
condition or provision of the Agreement to be performed by such other party
shall be deemed a wavier of a similar or dissimilar provision or condition at
the same or any prior or subsequent time.
(d) Notice. Any notice (with the exception of notice of
termination by CP&L, which may be given by any means and need not be in writing
except that if termination is for Cause, oral notice must be followed by written
notice required under Section 5(c) hereof) or other document or communication
required or permitted to be given or delivered hereunder shall be in writing and
shall be deemed to have been duly given or delivered if (i) mailed by United
States mail, certified, return receipt requested, with proper postage prepaid,
or (ii) otherwise delivered by hand or by overnight delivery, against written
receipt, by a common carrier or commercial courier or delivery service, to the
party to whom it is to be given at the address of such party as set forth below
(or to such other address as a party shall have designated by notice to the
other parties given pursuant hereto):
If to Employee:
Employee
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411 Fayetteville Street Mall
Raleigh, North Carolina 27602
If to CP&L:
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411 Fayetteville Street Mall
Raleigh, North Carolina 27602
Attn.: Vice President of Human Resources
Any such notice, request, demand, advice, schedule, report, certificate,
direction, instruction or other document or communication so mailed or sent
shall be deemed to have been duly given, if sent by mail, on the third business
day following the date on which it was deposited at a United States post office,
and if delivered by hand, at the time of delivery by such commercial courier or
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delivery service, and, if delivered by overnight delivery service, on the first
business day following the date on which it was delivered to the custody of such
common carrier or commercial courier or delivery service, as all such dates are
evidenced by the applicable delivery receipt, airbill or other shipping or
mailing document.
(e) Severability. In the event that any provision or portion
of this Agreement shall be determined to be invalid or unenforceable for any
reason, the remaining provisions or portions of this Agreement shall be
unaffected thereby and shall remain in full force and effect to the fullest
extent permitted by law.
(f) References. In the event of Employee's death or a judicial
determination of Employee's incompetence, reference in this Agreement to
Employee shall be deemed, where appropriate, to refer to Employee's legal
representative, or, where appropriate, to Employee's beneficiary or
beneficiaries.
(g) Headings. Headings contained herein are for convenient
reference only and shall not in any way affect the meaning or interpretation of
this Agreement.
(h) Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
(i) Rules of Construction. The following rules shall apply to
the construction and interpretation of this Agreement:
(i) Singular words shall connote the plural number as
well as the singular and vice versa, and the masculine shall include the
feminine and the neuter.
(ii) All references herein to particular articles,
paragraphs, sections, subsections, clauses, Schedules or Exhibits are references
to articles, paragraphs, sections, subsections, clauses, Schedules or Exhibits
of this Agreement.
(iii) Each party and its counsel have reviewed and
revised (or requested revisions of) this Agreement, and therefore any rule of
construction requiring that ambiguities are to be resolved against a particular
party shall not be applicable in the construction and interpretation of this
Agreement or any exhibits hereto or amendments hereof.
(iv) As used in this Agreement, "including" is
illustrative, and means "including but not limited to."
(j) Remedies. Remedies specified in this Agreement are in
addition to any others available at law or in equity.
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(k) Withholding Taxes. All payments under this Agreement shall
be subject to applicable income, excise and employment tax withholding
requirements.
IN WITNESS WHEREOF, the parties hereto have executed, or have caused
this Agreement to be executed by their duly authorized officer, as the case may
be, all as of the day and year written below.
By: ___________________________________ Date: ______________________
Employee
By: ___________________________________ Date: ______________________
Company
Title: ___________________________________
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