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Exhibit 10(q)-7
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is entered into this 10th
day of September, 1998, by and between THE WASHINGTON WATER POWER COMPANY, a
Washington corporation, whose principal place of business is located at 0000
Xxxx Xxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxx ("WWP" or the "Company") and Xxxxx X.
Xxxxx (the "Employee"), an individual currently residing in Spokane, Washington.
The Company or the Employee may hereafter be referred to individually as a
"Party" or collectively as the "Parties."
WHEREAS, the Company wishes to employ the Employee as Senior Vice
President and General Counsel, and the Employee wishes to accept such
employment;
WHEREAS, the Company and the Employee desire to enter into this
Employment Agreement setting forth the terms and conditions of employment;
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein, and for other good and valuable consideration, the Parties
agree as follows:
1. Employment and Duties.
1.1 The Company, and any successor thereto, agree to employ
Employee and Employee agrees to be employed by the Company beginning as of the
Effective Date of this Agreement, subject to the terms and conditions of this
Agreement. The Effective Date of this Agreement is September 16, 1998. Employee
agrees to begin performing the services as contemplated herein as soon as is
reasonably practicable after the Effective Date, after giving any required
notice to his existing employer.
1.2 From the Effective Date, and for the term of this Agreement,
Employee shall serve as General Counsel, and, subject to ratification and
approval by the Board of Directors of the Company, shall also hold the office of
Senior Vice President. Employee shall perform such duties and exercise such
powers as are customarily expected of the Senior Vice President and General
Counsel of business organizations which are similar to the Company. Such titles,
authority, duties and responsibilities may be changed from time to time only by
mutual written agreement of the Parties.
1.3 Employee's period of employment under this Agreement shall be
for a period of five (5) years, beginning as of the Effective Date of this
Agreement ("Initial Term"), and shall continue thereafter, on a year-to-year
basis, unless terminated by written notice delivered to Employee not less than
twelve (12) months prior to any anniversary date following the Initial Term. The
Initial Term, plus any year-to-year renewals, shall collectively constitute the
"Employment Period."
1.4 Employee shall, during the period of the employment by
Company, devote his entire business time, energy and best efforts to the
business and affairs of the Company and not engage, directly or indirectly, in
any other business or businesses to the extent such activity would be contrary
to the interests of Company or any Affiliate of Company or would detract from
Employee's ability to perform his duties under this Agreement.
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1.5 Employee shall be subject to the policies and procedures
adopted, established or amended by Company from time to time which are
applicable to all employees generally, except where inconsistent herewith.
2. Compensation and Benefits. During the term of this Agreement the
Company agrees to pay or cause to be paid to Employee, and Employee agrees to
accept in exchange for the services rendered hereunder by him, the following
compensation:
2.1 Base Salary. The Company shall pay Employee an annual base
salary of Two Hundred and Forty Thousand ($240,000.00), payable not less often
than monthly in equal installments, which salary shall be subject to prospective
adjustment from time to time by the Board of Directors of the Company, in its
sole discretion, but shall not be reduced during the term of this Agreement. An
increase in annual base salary shall not serve to limit or reduce any other
obligation of the Company under this Agreement.
2.2 Signing Bonus. On the Effective Date, the Company shall award
Employee a signing bonus of $200,000 (the "Signing Bonus"). In the event that
Employee terminates his employment with the Company prior to the expiration of
the Employment Period, other than for Good Reason (as defined below), Employee
shall repay to the Company, within sixty (60) days of date of termination, the
amount of the Signing Bonus as is proportionate to the period of time remaining
in the Employment Period.
2.3 Restricted Stock Award. Employee shall be awarded restricted
shares of the Company's Common Stock (the "Common Stock") having a fair market
value on the Effective Date equal to $200,000. This award will vest at me rate
of 25% on each of the first four anniversaries of the Effective Date. For
purposes of this section, the "fair market value" of the Common Stock means the
average of the high and low trading prices on the applicable day. This award
shall be made by the Company as soon as reasonably practicable following the
Effective Date. Regardless of the date this award is made, the number of
restricted shares awarded to Employee shall be calculated as described in the
first sentence of this section 2.3.
2.4 Stock Option Grant. On the Effective Date, Employee shall be
awarded an option to purchase 20,000 shares of Common Stock, with an exercise
price equal to the fair market value of the Common Stock on the Effective Date.
These options will vest at the rate of 25% on each of the first four
anniversaries of the Effective Date.
2.5 Incentive. Retirement. and Welfare Benefit Plans. During the
term of this Agreement, and so long as he is employed by the Company, Employee
shall be eligible to participate in all incentive, stock option, restricted
stock, performance unit or share, savings, retirement, health insurance or
health care plan, life insurance, disability insurance and welfare plans,
practices, policies and programs, including indemnification and a change of
control agreements, presently available or offered generally to other senior
executives of the Company, except with respect to any benefits under any plan,
practice, policy or program to which the Employee has waived his rights in
writing. As of the Effective Date, Employee shall be deemed to be an eligible
Employee to participate in the supplemental executive retirement plan and other
pension/benefit plans of the Company (or in the applicable successor plans
thereto), on terms not less favorable than those now in effect, and with
termination/death/disability benefits accrued and vesting as of the Effective
Date, and calculated on the basis of not less than twenty years of
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credited benefit service (@ 2.5%) for these and any other plans or programs
relating to termination, death, disability, and based on a level of final
average earnings of not less than the Employee's annual base salary and
bonus/incentive compensation earned during his first full year of employment.
2.6 Other Fringe Benefits. During the term of this Agreement,
Employee shall be entitled to other fringe benefits provided by Company policy
to officers or senior executives of the Company. In addition, Employee shall
also be entitled to not less than thirty (30) days paid Leave pursuant to the
Company's One-Leave Program (as currently in effect or as may be modified from
time to time).
3. Termination. Employment of Employee under this Agreement may be
terminated as follows:
3.1 By the Company. With or without Cause (as defined below), the
Company may terminate the Employment of Employee at any time during the
Employment Period upon giving Notice of Termination (as defined below).
3.2 By Executive. With or without Good Reason (as defined below),
Employee may terminate his employment at any time during the Employment Period
upon giving Notice of Termination.
3.3 Automatic Termination. This Agreement and Employee's
employment hereunder shall terminate automatically upon the death or total
disability of Employee. The term "total disability" as used herein shall mean
permanent and total disability as defined in Section 22(e)(3) of the Internal
Revenue Code of 1986, as amended (the "Code"). Termination under this Section
3.3 shall be deemed to be effective (a) at the end of the calendar month in
which Employee's death occurs or (b) immediately upon a determination by the
Board of Directors of Employee's total disability, as defined herein.
3.4 Notice. Except as otherwise provided in Section 1.3, The term
"Notice of Termination" shall mean at least twenty (20) days' written notice of
termination of Employee's employment, during which period Employee's employment
and performance of services will continue; provided, however, that the Company
may, upon notice to Employee and without reducing Employee's compensation during
such period, excuse Employee from any or all of his duties during such period.
The effective date of the termination of Employee's employment hereunder shall
be the date on which such twenty (20) day period expires.
3.5 Cause. Wherever reference is made in this Agreement to
termination being with or without Cause, "Cause" is limited to the occurrence of
one or more of the following events:
(a) The willful failure or refusal to carry out the lawful duties
of Employee described herein or any directions of the Board of Directors
of the Company, which directions are reasonably consistent with the
duties set forth herein to be performed by the Employee;
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(b) Violation by Employee of a state or federal criminal law
involving the commission of a crime against the Company or a felony;
(c) Current use by Employee of illegal substances, deception,
fraud, misrepresentation or dishonesty by Employee; any incident
materially compromising Employee's reputation or ability to represent
the Company with the public; any act or omission by Employee which
substantially impairs the Company's business, goodwill or reputation; or
any other misconduct; or
(d) Any other material and willful violation of any provision of
this Agreement.
3.6 Good Reason. Whenever reference is made in this Agreement to
termination being with or without Good Reason, "Good Reason" is limited to the
occurrence of one or more of the following events:
(a) The reduction in the Employee's annual base salary and other
entitlements specified in this Agreement or the reduction in the value
of other bonus payments or equity awards that Employee is eligible to
receive under this Agreement (provided, however, that Good Reason shall
not exist under this Section 3.6(a) in the event Employee does not
actually realize such values because of failure to satisfy performance
or other criteria applicable to such bonus payments or equity awards);
(b) The material diminution, change or reduction without his
consent of the Employee's title, authority, duties or responsibilities;
(c) The Company requiring Employee without his consent to be
based at any offices or locations other than his location as of the
Effective Date of this Agreement; or
(d) Any breach by the Company of any other material provision of
this Agreement.
4. Termination Payments. In the event of termination of the employment
of Employee, all compensation and benefits set forth in this Agreement shall
terminate except as specifically provided in this Section 4.
4.1 Termination by the Company. If the Company terminates the
Employee's employment without Cause prior to the end of the Employment Period,
(a) (i) Employee shall be entitled to receive termination payments equal to the
greater of twenty-four (24) months' annual base salary or the annual base salary
Employee would have received if his employment hereunder had continued until the
end of the Employment Period; (ii) the restricted stock award granted to
Employee under Section 2.3 hereof will vest in full; and (iii) vesting of all
other equity awards or stock options granted to Employee pursuant to this
Agreement will accelerate on the date of termination, but only up to the
percentages that would have been vested had Employee remained in regular
employment with the Company to the end of the Employment Period; (iv) the
Company shall pay to or cause to be paid to the Employee, pursuant to the terms
of the respective plans, based on the Employee's annual base salary at the time
Notice of Termination is given, the value of all benefits to which the Employee
would have been entitled had he remained
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in the employment of the Company until the end of the Employment Period, under
the Company's pension plans, supplemental executive retirement plans, disability
plans and such other benefit plans as may be adopted from time to time during
the Employee's employment with the Company; and (v) the Company shall continue
medical and welfare benefits for the Employee and the Employee's spouse at least
equal to those which would have been provided if the Employee's employment had
not been terminated, such benefits to be in accordance with the most favorable
medical and welfare benefit plans, practices, programs or policies of the
Company as in effect and applicable generally to other senior executives of the
Company and their families; and (b) Employee shall be entitled to receive any
unpaid annual base salary which has accrued for services already performed as of
the date termination of Employee's employment becomes effective, and any earned
and unpaid incentives, as well as any vested pension and benefit rights. For
purposes of determining under clause (a)(iii) above whether equity awards or
options that vest upon achievement of stock price appreciation goals would have
been vested at the end of the Employment Period, a 15% annual growth rate in the
market price of the Common Stock from the date of termination of employment
shall be assumed.
If Employee is terminated by the Company for Cause, Employee shall not
be entitled to receive any of the foregoing benefits, other than those set forth
in clause (b) above.
4.2 Termination by Employee. In the case of the termination of
Employee's employment by Employee other than for Good Reason, Employee shall not
be entitled to any payments hereunder, other than those set forth in Section
4.1(b) hereof. In the case of the termination of Employee's employment for Good
Reason, Employee shall be entitled to receive those payments set forth in
Section 4.1(a) and (b) hereof.
4.3 Expiration of Term. In the case of a termination of
Employee's employment as a result of the expiration of the Employment Period,
Employee shall not be entitled to receive any payments hereunder, other than
those set forth in Section 4.1(b) hereof.
4.4 Termination Because of Death or Total Disability. In the
event of a termination of Employee's employment because of his death or total
disability, Employee or his Personal Representative shall be entitled to receive
termination payments in accordance with the Company's Executive Income
Continuation Plan, or any successor plan thereto generally applicable to the
Company's executive officers.
4.5 Payment Schedule. All payments under this Section 4 shall be
made to the Employee at the same interval as payments of salary were made to
Employee immediately prior to termination.
5. Confidential Information. Employee acknowledges that the Company's
business is highly competitive and that the Company's books, records and
documents, the Company's technical information concerning its products,
equipment, services and processes, procurement procedures and pricing
techniques, the names of and other information (such as credit and financial
data) concerning the Company's customers and business Affiliates, all compromise
confidential business information and trade secrets of the Company which are
valuable, special, and unique assets of the Company which the Company uses in
its business to obtain a competitive advantage over the Company's competitors
which do not know or use this information. Employee further acknowledges that
protection of the Company's confidential
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business information and trade secrets against unauthorized disclosure and use,
is of critical importance to the Company in maintaining its competitive
position. Accordingly, Employee hereby agrees that he will not, at any time
during or after his employment by the Company, make any unauthorized disclosure
of any confidential business information or trade secrets of the Company, or
make any use thereof, except for the benefit of, and on behalf of the Company,
or make any use thereof, except for the benefit of and on behalf of the Company.
For the purposes of this Section, the term the "Company" shall also include
Affiliates of the Company.
6. Return of Materials. In the event of the termination of Employee's
employment with the Company or the expiration of this Agreement, Employee will
return all documents, data and other materials of whatever nature, including,
without limitation, drawings, specifications, research, reports, embodiments,
software and manuals to the Company which pertain to his employment with the
Company or to any Intellectual Property and shall not retain or cause or allow
any third party to retain photocopies of other reproductions of the foregoing.
7. Notice and Cure of Breach. Whenever a breach of this Agreement by
either Party is relied upon as justification for any action taken by the other
Party pursuant to any provisions of this Agreement, other than pursuant to the
definition of "Cause" set forth in Section 3 hereof, before such action is
taken, the Party asserting the breach of this Agreement shall give the other
Party at least twenty (20) days' prior written notice of the existence and the
nature of such breach before taking further action hereunder and shall give the
Party purportedly in breach of this Agreement the opportunity to correct such
breach during the twenty (20) day period.
8. Form of Notice. All notices given hereunder shall be given in
writing, shall specifically refer to this Agreement and shall be personally
delivered or sent by telecopy or other electronic facsimile transmission or by
reputable overnight courier, at the address set forth below or at such other
address as may hereafter be designated by notice given in compliance with the
terms hereof. Such notice shall be effective upon receipt or upon refusal of the
addressee to accept delivery.
If to Employee: The Washington Water Power Company
East 0000 Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxx
If to the Company: The Washington Water Power Company
East 0000 Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxx
9. Assignment. This Agreement is personal to the Employee and shall not
be assignable by Employee. The Company may assign its rights hereunder to (a)
any corporation resulting from any merger, consolidation or other reorganization
to which the Company is a party or (b) any corporation, partnership, association
or other person to which the Company may transfer all or substantially all of
the assets and business of the Company existing at such time. All of the terms
and provisions of this Agreement shall be binding upon and shall inure to the
benefit of and may be enforceable by the Parties hereto and their respective
successors and permitted assigns.
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10. Waivers. No delay or failure by any Party hereto in exercising,
protecting or enforcing any of its rights, tides, interests or remedies
hereunder, and no course of dealing or performance with respect thereto, shall
constitute a waiver thereof. The express waiver by a Party hereto of any right,
title, interest or remedy in a particular instance or circumstance shall not
constitute a waiver thereof in any other instance or circumstance. All rights
and remedies shall be cumulative and not exclusive of any other rights or
remedies. Any controversies or claims arising out of or relating to this
Agreement shall be fully and finally settled by arbitration in accordance with
the Commercial Arbitration Rules of the American Arbitration Association then in
effective (the "AAA Rules"), conducted by one arbitrator either mutually agreed
upon by the Company and the Employee or chosen in accordance with the AAA Rules,
except that the Parties thereto shall have any right to discovery as would be
permitted by the Federal Rules of Civil Procedure for a period of ninety (90)
days following the commencement of such arbitration and the arbitrator thereof
shall resolve any dispute which arises in connection with such discovery. The
prevailing Party shall be entitled to costs, expenses and reasonable attorney
fees, and judgment upon the award rendered by the arbitrator may be entered in
any court having jurisdiction thereof.
11. Amendments in Writing. No amendment, modification, waiver,
termination or discharge of any provision of this Agreement, nor consent to any
departure therefrom by either Party hereto, shall in any event be effective
unless the same shall be in writing, specifically identifying this Agreement and
the provision intended to be amended, modified, waived, terminated or discharged
and signed by the Company and Employee, and each such amendment, modification,
waiver, termination or discharge shall be effective only in the specific
instance and for the specific purpose for which given. No provision of this
Agreement shall be varied, contradicted or explained by any oral agreement,
course of dealing or performance or any other matter not set forth in an
agreement in writing and signed by the Company and the Employee.
12. Severability. If any provision of this Agreement shall be held
invalid, illegal or unenforceable in any jurisdiction, for any reason, then, to
the full extent permitted by law (a) all other provisions hereof shall remain in
full force and effect in such jurisdiction and shall be liberally construed in
order to carry out the intent of the Parties hereto as nearly as may be
possible, (b) such invalidity, illegality or unenforceability shall not affect
the validity, legality or enforceability of any other provision hereof; and (c)
any court or arbitrator having jurisdiction thereof shall have the power to
reform such provision to the extent necessary for such provision to be
enforceable under applicable law. Any benefits and payments owing to the
Employee under this Agreement shall be a general liability of the Company, and
shall be paid from the general assets of the Company, and shall be an unfunded
and unsecured promise to pay money in the future, to the extent the Company is
unable or has not elected to otherwise fund or secure such payments or
administer such payments and benefits under an existing plan or program.
13. Miscellaneous.
13.1 This Agreement shall in all respects, including all matters
of construction, validity and performance, be governed by and construed and
enforced in accordance with, the Laws of the State of Washington, without regard
to any rules governing conflicts of laws.
13.2 All headings used herein are for convenience only and shall
not in any way affect the construction of or be taken into consideration in
interpreting this Agreement.
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13.3 This Agreement, and any amendment or modification entered
into pursuant thereto, may be executed in any number of counterparts, each of
which counterparts, when so executed and delivered, shall be deemed to be an
original and all of which counterparts, taken together, shall constitute one and
the same instrument.
13.4 This Agreement on the date hereof constitutes the entire
agreement between the Company and Employee with respect to the subject matter
hereof and all prior or contemporaneous oral or written communications,
understandings or agreements between the Company and the Employee with respect
to such subject matter are hereby superseded and nullified in their entireties.
IN WITNESS WHEREOF the Parties have executed and entered into this
Agreement on the date set forth above.
EMPLOYEE: COMPANY:
/s/ Xxxxx X. Xxxxx By /s/ X. X. Xxxxxxxx
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Title Chairman and CEO
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