EXHIBIT 10c(27)
EMPLOYMENT AGREEMENT
BETWEEN
PROGRESS ENERGY SERVICE COMPANY, LLC
AND
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_____________________, 200__
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT ("Agreement"), dated as of the ____________ day
of ____________, 200_, is between Progress Energy Service Company, LLC, a
corporation headquartered in Raleigh, North Carolina, and a wholly-owned
subsidiary of Progress Energy, Inc., its successors or assigns and
_______________________ ("___________"). Progress Energy Service Company, LLC,
shall be referred to as "PESC" or "the Company" throughout. Progress Energy,
Inc. shall be referred to as "Progress Energy" throughout.
Preamble
The Company and ______________ agree to enter into an employment
relationship in which ___________________ will continue to serve as Senior Vice
President - ______________________, for the term as set forth within the
Agreement, and in consideration of this Agreement, the parties agree to the
terms and provisions outlined herein:
Provisions
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. RESPONSIBILITIES; OTHER ACTIVITIES.
_____________ shall occupy the position of Senior Vice President
________________________ at PESC and shall undertake the general
responsibilities and duties of such position as directed by PESC senior
management. During the Employment Term, _________________ shall perform
faithfully the duties of _________________'s position, devote all of
_________________'s working time and energies to the business and affairs of
PESC and shall use ________________'s best efforts, skills and abilities to
promote PESC's general business interests. PESC reserves the right to reassign
_______________ to other positions within the controlled group of Progress
Energy companies.
2. TERM OF THE AGREEMENT:
(a) The Agreement becomes effective on ____________ ____, 200__, and
shall remain in effect until _____________ _____, 200__.
(b) On January 1, 200__ and on January 1 of each year thereafter ("the
Extension Date"), the Agreement will be extended such that each prospective term
will always be three years forward ("Evergrow provisions").
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(c) The Company may elect to not extend the Agreement and must notify
________________ no later than 60 days prior to the Extension Date that it does
not intend to renew the Agreement pursuant to paragraph 2(b), above. Should the
Company elect not to renew the Agreement, the Agreement will continue in effect
for the remainder of its term.
(d) The Agreement cannot extend beyond _______________'s normal
retirement date unless ______________ is requested to serve in his/her full-time
position for a defined period as set forth by the Chief Executive Officer of
Progress Energy.
3. SALARY. As compensation for the services to be performed hereunder,
_________________ will be paid a base salary at the annual rate of
________________Dollars ($_______________) (less applicable withholdings)
beginning on ________ ____, 200_. Annual base salary for each subsequent year of
employment under the Agreement shall be subject to adjustment by PESC during the
normal annual salary review process for similarly situated executives as
determined by PESC in its discretion. Annual base salary shall be deemed earned
proportionally as ______________ performs services over the course of each year
the Agreement is in effect. Payments of annual base salary shall be made, except
as otherwise provided herein, in accordance with PESC's standard payroll
policies and procedures.
4. EMPLOYEE BENEFIT PLANS. During the Employment Term, ____________ shall
be entitled to participate in all applicable Company and Progress Energy
sponsored benefits plans as may be in effect upon terms and in accordance with
policies and procedures equivalent to those then in effect and applicable
generally to PESC employees.
5. EXECUTIVE INCENTIVES, BENEFITS AND PERQUISITES. _____________ is
eligible to participate in the following executive incentive and benefit plans
and to receive the following executive perquisites:
(a) Short Term Incentive Plan. ______________ is eligible to
participate in the Progress Energy sponsored Management Incentive Compensation
Plan (MICP), subject to its terms. The annual target will be __% of actual base
salary earnings. ______________'s 200__ MICP target will be pro-rated at the
target rate of ___% between ____________ ______ and ______ ___, 200__ and __%
for the period between _______ ___ and __________ ___, 200__. The annual target
will increase to ___% effective _________ ___, 200__.
(b) Long Term Incentives. _____________ is eligible to participate in
a long term incentive program, subject to its terms, with the following
components:
(i) An award of performance shares/units equivalent to ____% of
base salary earned over a three-year period and adjusted based on Progress
Energy performance. These annual awards are generally made in March. For the
year 200__, ____________ is eligible to receive an award of performance shares
earned over a three (3)-year period and adjusted based on Progress Energy
performance.
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(ii) An award of stock options equivalent to approximately ___%
of base salary vesting 1/3, 1/3, and 1/3 on the 1st, 2nd and 3rd anniversaries,
from the date of grant. These annual awards are generally granted in October.
(iii) An award of restricted common stock equivalent to ___% of
base salary vesting 1/3, 1/3 and 1/3 on the 3rd, 4th and 5th anniversaries,
respectively, from the date of grant. These annual awards are generally made in
March. For the year 200__, ___________ shall receive ______ shares of restricted
common stock in accordance with the terms of a Progress Energy Restricted Stock
Agreement.
(c) Base Salary Deferral Plan. _____________ is eligible to
participate in the Progress Energy sponsored Management Deferred Compensation
Plan (MDCP), subject to its terms.
(d) Restoration Pension Plan. _____________ is eligible to participate
in the Progress Energy sponsored non-qualified pension plan ("the Restoration
Retirement Plan"), subject to its terms. If _____________ becomes eligible for
benefits under Progress Energy's Supplemental Senior Executive Retirement Plan,
____________ forfeits all benefits under the Restoration Retirement Plan.
(e) Supplemental Senior Executive Retirement Plan. Upon meeting the
Plan's eligibility requirements, ____________ shall be eligible for
participation in Progress Energy's Supplemental Senior Executive Retirement Plan
(SERP), subject to its terms.
(f) Executive AD&D Life Insurance. ____________ shall be eligible to
participate in Progress Energy's Executive AD&D Life Insurance Plan, subject to
its terms.
(g) Split Dollar Insurance Plan. ______________ is eligible to
participate in the Progress Energy sponsored Split Dollar Life Insurance Plan,
subject to its terms.
(h) Financial Planning. Consistent with PESC's practice with respect
to other executives, ______________ will be reimbursed for financial planning
and tax preparation.
(i) Automobile Allowance. ______________ is eligible to receive an
automobile allowance of _______________________ Dollars ($________) per month
(less withholdings), subject to the terms of PESC's policies.
(j) Annual Physical. Consistent with PESC's practice with respect to
other executives, PESC will pay for an annual physical examination by a
physician of _____________'s choice.
(k) Luncheon Club. PESC will pay the monthly dues for a membership at
a luncheon club approved by PESC senior management. Business related expenses
will be reimbursed consistent with PESC's expense account guidelines.
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(l) Country Club Membership. At ____________'s option, if joined,
Progress Energy will pay an initiation fee and monthly dues for a membership for
____________ at a country club approved by Progress Energy. Business related
expenses will be reimbursed consistent with Progress Energy's expense account
guidelines.
(m) Airline Club Membership. Progress Energy will provide an airline
club membership in accordance with Progress Energy policy.
(n) Personal Computer. Progress Energy will provide a personal
computer to _____________ to be used at his/her personal residence.
(o) Home Security. PESC will install a home security system at
_______________'s personal residence and pay for any ongoing monitoring fees.
6. COMPANY PLAN AND PROGRAM MAINTENANCE. ____________'s entitlement to the
benefits described in Sections 4 and 5 shall be governed exclusively by the
terms of the plans and programs described in those provisions. Nothing in the
Agreement shall require Progress Energy or the Company to continue or maintain
any short term incentive, long term incentive, employee or executive benefit
plan or program or any perquisite. Progress Energy and the Company shall have
the right to modify, replace or eliminate any incentive or benefit plans or
programs, including perquisites.
7. VACATION AND HOLIDAYS. ______________ will be entitled to _____ weeks of
vacation leave per year, unless his/her combined years of service to Progress
Energy subsidiaries entitle him/her to additional vacation leave pursuant to
Company policy. __________ will be granted paid holidays per Company policy.
8. TERMINATION OF EMPLOYMENT.
(a) Involuntary Termination.
(i) For purposes of this Agreement, PESC shall be deemed to have
terminated ____________'s employment if _____________ is displaced from an
assignment within the controlled group of Progress Energy companies and is not
simultaneously reassigned to another position within the controlled group of
Progress Energy companies.
(ii) Termination Without Cause. During the term of this
Agreement, if _____________'s employment from the controlled group of Progress
Energy companies is terminated without cause, then _____________ will be
provided with his/her then-base salary at the rate at the time of termination
for the remainder of the term of the Agreement. Additionally, PESC will
reimburse ______________ for the costs of continued coverage under certain
health and welfare benefit plans pursuant to the Consolidated Omnibus Budget
Reconciliation Act of 1985 ("COBRA") for up to eighteen (18) months after the
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termination of his/her employment; provided, however, that ______________ shall
not be eligible for COBRA reimbursement if he/she is otherwise eligible for
coverage under benefit plans offering substantially equivalent or greater
benefits than the plans in which he/she is eligible to participate under COBRA.
Receipt of the benefits in this paragraph is subject to the requirements of
paragraphs 8(f), (g) and (h) of this Agreement. In addition, _________ will be
eligible to retain all benefits under existing benefit plans to the extent
vested within the terms of those plans.
(iii) Termination for Cause. During the term of this Agreement,
PESC may elect at any time to terminate ______________'s employment immediately
hereunder and remove ____________ from employment for cause. For purposes of
this paragraph 8(a)(iii), cause for the termination of employment shall be
defined as: (1) any act of ___________'s including, but not limited to,
misconduct, negligence, unlawfulness, dishonesty or inattention to the business,
which is detrimental to PESC's interests; or (2) ____________'s unsatisfactory
job performance or failure to comply with PESC policies, rules or regulations.
If ____________ is terminated for Cause as defined herein, then he/she shall be
eligible to retain all benefits under existing benefit plans that have vested
pursuant to those plans, but he/she shall not be entitled to any form of salary
continuation or severance benefits. Upon termination for cause, ____________
shall be entitled to any earned but unpaid salary accrued to the date of
termination. Any continued rights or benefits _____________ or his/her legal
representatives may have under any PESC or Progress Energy sponsored employee
benefit plan or program upon his/her termination for cause shall be determined
in accordance with the terms or provisions of the plan or program.
(b) Constructive Termination.
(i) Within the term of this Agreement, if ___________'s
employment is constructively terminated, then __________ will be provided with
his/her base salary at the current rate for the remainder of the term of this
Agreement. Additionally, Progress Energy will reimburse ______________ for
his/her COBRA premiums for up to eighteen (18) months after the termination of
______________'s employment as long as _______________ 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 paragraphs 8 (f), (g) and (h)
of this Agreement. In addition, _______________ 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 8 of this Agreement, a
constructive termination will be deemed to occur if: (1) there is a change in
the form of ownership of Progress Energy (e.g., Progress Energy is acquired,
enters into a business combination with another company or otherwise changes
form of ownership) and (2) ____________ is offered a new position with a
material change in authority, duties, wages or benefits. If ___________'s
employment is constructively terminated under this paragraph, _____________ is
entitled to the greater of either the benefits contained in this paragraph or
the benefits he/she is entitled to, if any, under the Progress Energy Management
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Change-in-Control Plan, according to the terms of the Plan. Changes to the
corporate structure of Progress Energy not related to an acquisition of Progress
Energy shall not constitute grounds for constructive termination.
(c) Voluntary Termination. If ____________ terminates his/her
employment voluntarily for any reason at any time, then he/she shall be eligible
to retain all benefits under existing benefit plans that have vested pursuant to
the terms of those plans, but as of the last date of regular employment, he/she
shall not be entitled to any form of salary continuation or other severance
benefit.
(d) Termination Due to Death. In the event of ______________'s death
during the term of the Agreement, ______________'s employment hereunder shall
terminate and the Company shall have no further obligation to _____________
under this Agreement except as specifically provided in this Agreement.
______________'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 year in which
______________'s death occurs shall be calculated on a pro rata basis for the
portion of the fiscal year prior to __________________'s death occurring and
shall be paid at the regularly scheduled time for the payment of the Bonus. Any
rights and benefits ____________, or _____________'s estate or other legal
representatives, may have under employee benefit plans and programs of PESC or
Progress Energy upon _____________'s death during the Employment Term, if any,
shall be determined in accordance with the terms and provisions of such plans
and programs.
(e) Termination Due to Medical Condition.
(i) PESC may terminate ____________'s employment hereunder,
subject to the Americans With Disabilities Act or other applicable law, due to
medical condition if (1) for a period of 180 consecutive days during the
Employment Term, ___________ is totally and permanently disabled as determined
in accordance with the Company's long term disability plan (LTD), if any, as in
effect during such time; or (2) at any time during which no such plan is in
effect, ______________ is substantially unable to perform his/her duties
hereunder because of a medical condition for a period of 180 consecutive days
during the term of the Agreement. Provided, however, that if _____________
applies for and is deemed eligible for benefits under the Progress Energy
sponsored Long Term Disability Plan (LTD Benefits), ______________ shall receive
such benefits and his/her employment will not be terminated as long as he/she is
receiving LTD Benefits.
(ii) Upon the termination of ___________'s employment due to
medical condition or placement of ____________ on Long Term Disability (LTD),
PESC shall have no further obligation to ____________ under this Agreement
except as specifically provided in this Agreement. Upon such termination or
placement on LTD, ____________ 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
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the fiscal year _______________ was performing the duties of his/her position
and shall be paid at the regularly scheduled time for the payment of the Bonus.
Any continued rights and benefits _____________, or _______________'s legal
representatives, may have under employee benefit plans and programs of PESC or
Progress Energy upon ________________'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.
(f) Release of Claims. In order to receive continuation of salary
under paragraph 8(a) or 8(b), ______________ agrees to execute a written release
of all claims against PESC, and its employees, officers, directors, subsidiaries
and affiliates, on a form acceptable to PESC.
(g) Covenant Not to Compete. If PESC terminates _____________'s
employment without Cause under paragraph 8(a) or if ____________ becomes
eligible for the benefits available under paragraph 8(a) as the result of a
change in control as set forth in paragraph 8(b), _____________, 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 interest with which
_________________ is involved.
(h) Non Interference. If PESC terminates ____________'s employment
without Cause under paragraph 8(a) or if _______________ becomes eligible for
the benefits available under paragraph 8(a) as the result of a change in control
as set forth in paragraph 8(b), ___________, for one year after the Termination
Date, shall not whether on his/her 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, 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.
9. ASSIGNABILITY.
No rights or obligations of ______________ under this Agreement may be
assigned or transferred by _______________, except that (i) ___________'s rights
to compensation and benefits hereunder may be transferred by will or laws of
intestacy to the extent specified herein and (ii) _____________'s rights under
employee benefit plans or programs described in Sections 4 and 5 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.
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10. CONFIDENTIALITY.
______________ 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
his/her best efforts to obtain a protective order requiring that all disclosures
be kept under court seal) and will notify PESC promptly upon receipt of such
order or subpoena.
11. MISCELLANEOUS.
(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.
(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 ____________ and by an officer of PESC 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 waiver 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
PESC, 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) 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 _______________:
------------------
Progress Energy Service Company, LLC
410 S. Wilmington Street
Raleigh, North Carolina 27601
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If to PESC:
Progress Energy Service Company, LLC
410 S. Wilmington Street
Raleigh, North Carolina 27601
Attn.: Vice President - 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
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 _______________'s death or a judicial
determination of _____________'s incompetence, reference in this Agreement to
____________ shall be deemed, where appropriate, to refer to ___________'s legal
representative, or, where appropriate, to _______________'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:
(1) 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.
(2) 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.
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(3) 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.
(4) 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.
(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.
EMPLOYEE
_________________________________________ Date: _________________________
PROGRESS ENERGY SERVICE COMPANY, LLC
By: ___________________________________ Date: _________________________
OFFICER
OFFICER TITLE
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