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Exhibit 10.1.c
CHANGE IN CONTROL SEVERANCE
AGREEMENT
THIS CHANGE IN CONTROL SEVERANCE AGREEMENT is
entered into as of the ___ day of ____________, 2006, between Great
Plains Energy Incorporated, a Missouri corporation ("Great Plains
Energy"), and John Marshall ("Executive").
WITNESSETH:
WHEREAS, Executive is a valued employee of Great
Plains Energy or a subsidiary thereof (the "Company");
and
WHEREAS, the Board (as defined herein) believes
that it is in the best interests of the Company and its
shareholders (i) to provide assurance that the Company will have
the continued service of Executive notwithstanding the possibility,
threat or occurrence of a Change in Control (as defined in Section
1), (ii) to diminish the distraction to Executive that may arise by
virtue of the personal uncertainties and risks created by such a
threatened or pending Change in Control, and (iii) to encourage
Executive's full attention and dedication to the Company currently
and in the event of a threatened or pending Change in Control;
and
WHEREAS, the Board and Executive previously
entered into a severance agreement dated May 25, 2005, the "Prior
Severance Agreement" whereby Great Plains Energy agreed to provide
Executive with certain compensation and perquisites following
Executive's termination or constructive termination of employment
with the Company in connection with a change in control or
potential change in control of Great Plains Energy; and
WHEREAS, the Board and Executive agree that, in
connection with both parties entering into this Agreement, the
Prior Severance Agreement shall be terminated, rendered null and
void, and all duties and rights conferred upon the parties thereto
extinguished, and that such Prior Severance Agreement is replaced
in its entirety with the benefits, duties, terms and conditions set
forth in this Agreement;
NOW, THEREFORE, in consideration of the premises
and the mutual agreements contained herein, the parties hereto
agree as follows:
1. Certain
Definitions . As used in this Agreement, unless otherwise
defined herein or unless the context otherwise requires, the
following terms shall have the following meanings:
(a) Agreement . "Agreement" means this Change in Control
Severance Agreement as amended from time to time.
(b) Beneficial
Owner . "Beneficial Owner" shall have the same meaning as
set forth in Rule 13d-3 of the Exchange Act.
(c) Board
. "Board" means the Board of Directors of Great Plains
Energy.
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(d) Cause
. "Cause" means (i) the material misappropriation of any of the
Company's funds, Confidential Information or property; (ii) the
conviction of, or the entering of a guilty plea or plea of no
contest with respect to, a felony, or the equivalent thereof; (iii)
commission of act of willful damage, willful misrepresentation,
willful dishonesty, or other willful conduct that can reasonably be
expected to have a material adverse effect on the business,
reputation, or financial situation of the Company; or (iv) gross
negligence or willful misconduct in performance of Executive's
duties; provided, however, "cause" shall not exist under clause
(iv), above, with respect to an act or failure to act unless (A)
Executive has been provided written notice describing in sufficient
detail the acts or failure to act giving rise to the Company's
assertion of such gross negligence or misconduct, (B) been provided
a reasonable period to remedy any such occurrence and (C) failed to
sufficiently remedy the occurrence.
(e) Change in
Control . "Change in Control" means the occurrence of one of
the following events, whether in a single transaction or a series
of related transactions:
(i) any Person is or
becomes the Beneficial Owner, directly or indirectly, of securities
of Great Plains Energy (not including in the securities
beneficially owned by such Person any securities acquired directly
from Great Plains Energy or its affiliates other than in connection
with the acquisition by Great Plains Energy or its affiliates of a
business) representing 35% or more of either the then outstanding
shares of common stock of Great Plains Energy or the combined
voting power of Great Plains Energy's then outstanding securities;
or
(ii) the following
individuals cease for any reason to constitute a majority of the
number of directors then serving: individuals who, on the date
hereof, constitute the Board and any new director (other than a
director whose initial assumption of office is in connection with
an actual or threatened election contest, including but not limited
to a consent solicitation, relating to the election of directors of
Great Plains Energy, as such terms are used in Rule 14a-11 of
Regulation 14A under the Exchange Act) whose appointment or
election by the Board or nomination for election by Great Plains
Energy's stockholders was approved by a vote of at least two-thirds
(2/3) of the directors then still in office who either were
directors on the date hereof or whose appointment, election or
nomination for election was previously so approved; or
(iii) the
consummation of a merger, consolidation, reorganization or similar
corporate transaction of Great Plains Energy, whether or not Great
Plains Energy is the surviving corporation in such transaction,
other than (A) a merger, consolidation, or reorganization that
would result in the voting securities of Great Plains Energy
outstanding immediately prior thereto continuing to represent
(either by remaining outstanding or by being converted into voting
securities of the surviving entity or any parent thereof), in
combination with the ownership of any trustee or other fiduciary
holding securities under an employee benefit plan of the Company,
at least 60% of the combined voting power of the voting securities
of Great Plains Energy or such surviving entity or any parent
thereof outstanding immediately after such merger, consolidation or
reorganization, or (B) a merger, consolidation or reorganization
effected to implement a recapitalization of Great Plains Energy (or
similar transaction) in which no Person is or becomes the
Beneficial Owner, directly or indirectly, of securities of Great
Plains Energy (not including in the securities Beneficially Owned
by such Person any securities acquired directly from Great Plains
Energy or its affiliates other than in connection with the
acquisition by Great Plains Energy or its affiliates of a business)
representing 20% or more of either the then outstanding shares of
common stock of Great Plains Energy or the combined voting power of
Great Plains Energy's then outstanding securities; or
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(iv) the occurrence
of, or the stockholders of Great Plains Energy approve a plan of, a
complete liquidation or dissolution of Great Plains Energy or an
agreement for the sale or disposition by Great Plains Energy of all
or substantially all of Great Plains Energy's assets, other than a
sale or disposition of all or substantially all of Great Plains
Energy's assets to an entity, at least 60% of the combined voting
power of the voting securities of which are owned by Persons in
substantially the same proportions as their ownership of Great
Plains Energy immediately prior to such sale.
Notwithstanding the foregoing, no "Change in
Control" shall be deemed to have occurred if there is consummated
any transaction or series of integrated transactions immediately
following which the record holders of the common stock of Great
Plains Energy immediately prior to such transaction or series of
transactions continue to have substantially the same proportionate
ownership in an entity which owns all or substantially all of the
assets of Great Plains Energy immediately following such
transaction or series of transactions.
(f) Change in
Control Period . "Change in Control Period" means the period
commencing on the date hereof and ending on the second anniversary
of such date; provided, however, that commencing on a date one year
after the date hereof, and on each annual anniversary of such date
(such date and each annual anniversary thereof being hereinafter
referred to as the "Renewal Date"), the Change in Control Period
shall be automatically extended so as to terminate two years from
such Renewal Date, unless at least 60 days prior to the Renewal
Date the Company shall give notice to Executive that the Change in
Control Period shall not be so extended; provided, further that
during any period of time when the Board or the governing body of
Great Plains Energy has knowledge that any person has taken steps
reasonably calculated to effect a Change in Control, the Change in
Control Period shall automatically be extended (and may not
terminate) until, in the opinion of the Board, such person has
abandoned or terminated its efforts to effect a Change in
Control.
(g) Company . "Company" means, except as the context
requires otherwise, references to Great Plains Energy Incorporated,
a Missouri corporation, its successors and assigns, and/or any
subsidiary thereof, as applicable.
(h) Confidential
Information . "Confidential Information" means (1) any and
all trade secrets concerning the business and affairs of the
Company, product specifications, data, know-how, formulae,
algorithms, compositions, processes, designs, sketches,
photographs, graphs, drawings, samples, inventions and ideas, past,
current, and planned research and development, current and planned
manufacturing or distribution methods and processes, customer
lists, current and anticipated customer requirements, price lists,
market studies, business plans, computer software and programs
(including object code and source code), computer software and
database technologies, systems, structures, and architectures; (2)
information concerning the business and affairs of the Company
(which includes historical financial statements, financial
projections and budgets, historical and projected sales, capital
spending budgets and plans, the names and backgrounds of key
personnel, personnel training and techniques and materials); and
(3) notes, analysis, compilations, studies, summaries, and other
material prepared by or for the Company containing or based, in
whole or in part, or any information included in the foregoing,
whether reduced to writing or not and which has not become publicly
known or made generally available through no wrongful act of
Executive or others who were under confidentiality obligations as
to the item or items involved.
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(i) Date of
Termination . "Date of Termination" means (i) if Executive's
employment is terminated by the Company for Cause, or by Executive
for Good Reason, the date of receipt of the Notice of Termination
or any later date permitted to be specified therein, as the case
may be, (ii) if Executive's employment is terminated by the Company
other than for Cause or Disability, the Date of Termination shall
be the date on which the Company notifies Executive of such
termination, (iii) if Executive's employment is terminated by
reason of death or Disability, the Date of Termination shall be the
date of death of Executive or the Disability Effective Date (as
defined in Section 2(a)), as the case may be and (iv) if
Executive's employment is terminated by Executive for other than
Good Reason, the Date of Termination shall be the date on which
Executive notifies the Company in writing of such termination or
any later date permitted to be specified therein, as the case may
be.
(j) Disability or
Disabled . The term "Disability" or "Disabled" shall mean an
individual (i) is unable to engage in any substantial gainful
activity by reason of any medically determinable physical or mental
impairment which can be expected to result in death or can be
expected to last for a continuous period of not less than twelve
(12) months or (ii) is, by reason of any medically determinable
physical or mental impairment which can be expected to result in
death or can be expected to last for a continuous period of not
less than twelve (12) months, receiving income replacement benefits
for a period of not less than 3 months under a Company sponsored
accident or health plan.
(k) Effective
Date . "Effective Date" means the first date on which a
Change in Control occurs during the Change in Control
Period.
(l) Exchange
Act. "Exchange Act" means the Securities Exchange Act of
1934, as amended from time to time.
(m) Good
Reason . "Good Reason" means, without Executive's written
consent any of the following:
(i) Any material and
adverse reduction or material and adverse diminution in Executive's
position (including status, offices, titles and reporting
requirements), authority, duties or responsibilities held,
exercised or assigned at any time during the 90-day period
immediately preceding the commencement of the Pre-CIC Protected
Period;
(ii) Any reduction
in Executive's annual base salary as in effect immediately
preceding the commencement of the Pre-CIC Protected Period or as
the same may be increased from time to time;
(iii) Any reduction
in benefits received by Executive under Company Plans (as defined
below) to less than the most favorable benefits provided to
Executive by the Company under Company Plans at any time during the
90-day period immediately preceding the commencement of the Pre-CIC
Protected Period. "Company Plans" means (1) all incentive, savings
and retirement plans, practices, policies and programs sponsored or
maintained by the Company, (2) all welfare benefit plans,
practices, policies and programs (including medical, prescription,
dental, disability, salary continuance, employee life, group life,
accidental death and travel accident insurance plans and programs)
sponsored or maintained by the Company, (3) expense
reimbursement by the Company for all reasonable out-of-pocket
employment expenses incurred by Executive, (4) the provision of
fringe benefits, and (5) the provision of paid vacation time by the
Company;
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(iv) Executive being
required by the Company to be based at any office or location that
is more than 70 miles from the location where Executive was
employed immediately preceding the commencement of the Pre-CIC
Protected Period; or
(v) Any failure by
the Company to require any successor (whether direct or indirect,
by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company to
assume expressly and agree to perform this Agreement in the same
manner and to the same extent that the Company would be required to
perform it if no such succession had taken place, or any failure by
any such successor after ten (10) days notice from Executive to so
perform under this Agreement.
Provided, however, notwithstanding the occurrence
of any of the events set forth above in this Section 1(m), Good
Reason shall not include for the purpose of this definition (1) an
isolated, insubstantial and inadvertent action not taken in bad
faith and which is remedied by the Company promptly after receipt
of notice thereof given by Executive, or (2) if occurring within
the Pre-CIC Protected Period, any reduction in Executive's base
annual salary or reduction in benefits received by Executive where
such reduction is in connection with a company-wide reduction in
salaries or benefits.
(n) Notice of
Termination . "Notice of Termination" means a written notice
of termination which (i) indicates the specific termination
provision in this Agreement relied upon, (ii) to the extent
applicable, sets forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of
Executive's employment under the provision so indicated and (iii)
if the Date of Termination is other than the date of receipt of
such notice, specifies the termination date (which date shall be
not more than fifteen (15) days after the giving of such notice),
unless another date is mutually agreed upon between Executive and
the Company.
(o) Person
. "Person" has the meaning given in Section 3(a)(9) of the Exchange
Act, as modified and used in Sections 13(d) and 14(d) thereof,
except that such term shall not include (1) Great Plains Energy or
any of its subsidiaries, (2) a trustee or other fiduciary holding
securities under an employee benefit plan of the Company or any of
its subsidiaries, (3) an underwriter temporarily holding securities
pursuant to an offering of such securities, or (4) a corporation
owned, directly, or indirectly, by the stockholders of Great Plains
Energy in substantially the same proportions as their ownership of
stock of Great Plains Energy.
(p) Post-Effective Period . "Post-Effective Period" means
the period commencing on the Effective Date and ending on the
earlier of (i) the second anniversary of such date or
(ii) Executive's 70 th birthday.
(q) Pre-CIC
Protected Period . "Pre-CIC Protected Period" means the
period that is within the Change in Control Period and begins when
(A) Great Plains Energy enters into an agreement, the consummation
of which would result in the occurrence of a Change in Control; (B)
Great Plains Energy or any Person publicly announces an intention
to take or to consider taking actions which, if consummated, would
constitute a Change in Control; (C) any Person becomes the
Beneficial Owner, directly or indirectly, of voting securities of
Great Plains Energy representing 10% or more of the combined voting
power of Great Plains Energy's then outstanding voting securities;
or (D) the Board, the members or the stockholders of Great Plains
Energy adopts a resolution approving any of the foregoing or
approving any Change in Control, and ends upon the date the Change
in Control transaction is either consummated, abandoned or
terminated (for this purpose, the Board shall have the sole and
absolute discretion to determine that a proposed transaction has
been abandoned).
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2. Termination of
Employment During the Post-Effective Period .
(a) Death or
Disability . Executive's employment shall terminate
automatically upon Executive's death or, with written notice by the
Company of its intention to terminate Executive's employment, upon
Executive's Disability. In such event, Executive's employment with
the Company shall terminate effective on the 90th day after receipt
of such notice by Executive (the "Disability Effective Date"),
provided that within the 90 days after such receipt Executive shall
not have returned to full-time performance of Executive's
duties.
(b) Cause
. The Company may terminate Executive's employment at any time for
Cause or without Cause. Notwithstanding the foregoing, Executive
shall not be deemed to have been terminated for Cause without (i)
reasonable notice to Executive setting forth the reasons for the
Company's intention to terminate for Cause, (ii) an opportunity for
Executive, together with his counsel, to be heard before the Board
within fifteen (15) days of such notice, and (iii) delivery to
Executive of a Notice of Termination from the Board finding that,
in the good faith opinion of the Board, that Executive was guilty
of conduct set forth in Section 1(d), and specifying the
particulars thereof in reasonable detail.
(c) Executive
Resignation . Executive's employment may be terminated at
any time by Executive for Good Reason or without Good
Reason.
(d) Notice of
Termination . Any termination by the Company for Cause, or
by Executive for Good Reason, shall be communicated by Notice of
Termination to the other party hereto. The failure by Executive or
the Company to set forth in the Notice of Termination any fact or
circumstance that contributes to a showing of Good Reason or Cause
shall not waive any right of Executive or the Company hereunder or
preclude Executive or the Company from asserting such fact or
circumstance in enforcing Executive's or the Company's rights
hereunder.
3. Obligations of
the Company Upon Termination of Employment .
(a) Post-Effective Period Terminations Other Than for Cause, Death
or Disability; Post-Effective Period Executive Resignation .
If, during the Post-Effective Period, the Company shall terminate
Executive's employment other than (I) for Cause or (II) on account
of Executive's death or Disability, or Executive shall terminate
employment for Good Reason, the Company shall pay to Executive, in
a lump-sum cash payment made within 30 days following the Date of
Termination, as compensation for services rendered to the Company,
an amount equal to the aggregate of the following amounts set forth
below in Sections 3(a)(i), (ii), (iii), and (iv), and provide to
Executive the benefits provided in Section 3(a)(v).
(i) A cash amount
equal to the sum of (A) Executive's full annual base salary from
the Company and its affiliated companies through the Date of
Termination, to the extent not theretofore paid, (B) a bonus in an
amount at least equal to the average annualized incentive awards
paid or payable pursuant to any Company-sponsored annual incentive
compensation plan, including by reason of any deferral under a
Company-sponsored deferred compensation program, to Executive by
the Company and its affiliated companies during the five fiscal
years of the Company (or if Executive shall have performed services
for the Company and its affiliated companies for four fiscal years
or less, the years during which Executive performed services)
immediately preceding the fiscal year in which the Change in
Control (or if benefits are payable pursuant to Section 3(c), the
Date of Termination) occurs, multiplied by a fraction, the
numerator of which is the number of days in the fiscal year in
which the Date of Termination occurs through the Date of
Termination and the denominator of which is 365 or 366, as
applicable, to the extent not theretofore paid, (C) any amount
credited to Executive's CAP Excess Benefits Account pursuant to the
Great Plains Energy Incorporated Nonqualified Deferred Compensation
Plan and any other compensation previously deferred by Executive
(together with any interest and earnings thereon), in each case to
the extent not theretofore paid, and (D) any accrued unpaid
vacation pay;
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(ii) a cash amount
equal to (A) two (2) times Executive's highest annual base salary
from the Company and its affiliated companies in effect during the
twelve (12)-month period prior to the Date of Termination, plus (B)
two (2) times Executive's average annualized annual incentive
compensation awards, paid, or, but for a deferral under a
Company-sponsored deferred compensation program, would have been
paid, to Executive by the Company and its affiliated companies
during the five fiscal years of the Company (or if Executive shall
have performed services for the Company and its affiliated
companies for four fiscal years or less, the years during which
Executive performed services) immediately preceding the fiscal year
in which the Change in Control (or if benefits are payable pursuant
to Section 3(c), the Date of Termination) occurs; provided,
however, that in the event there are fewer than twenty-four (24)
whole months remaining from the Date of Termination to the date of
Executive's 70th birthday, the amount calculated in accordance with
this Section 3(a)(ii) shall be reduced by multiplying such amount
by a fraction the numerator of which is the number of months,
including a partial month (with a partial month being expressed as
a fraction the numerator of which is the number of days remaining
in such month and the denominator of which is the number of days in
such month), so remaining and the denominator of which is
twenty-four (24) months; provided further that any amount paid
pursuant to this Section 3(a)(ii) shall be paid in lieu of any
other amount of severance pay to be received by Executive upon
termination of employment of Executive under any severance plan,
policy or arrangement of the Company;
(iii) a cash amount
equal to the excess of (A) the actuarial equivalent value of the
monthly accrued benefits payable to Executive at age 65 under the
Great Plains Energy Incorporated Management Pension Plan (the
"Pension Plan") as in effect on the date of this Agreement and the
benefits provided under the Supplemental Executive Retirement Plan
in respect of the Pension Plan as in effect on the date of this
Agreement, assuming (1) that benefits have accrued thereunder and
Executive is entitled to such benefits, (2) each such benefit shall
be computed as if Executive had two Years of Credited Service for
every one actual Year of Credited Service earned under the Pension
Plan, plus four additional Years of Credited Service earned under
the Pension Plan and (3) Executive were fully vested in such
hypothetical benefits, over (B) the actuarial equivalent value of
Executive's vested accrued benefits under the Pension Plan and
benefits payable under the Supplemental
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