EXHIBIT 10(D)
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (the "Agreement"), dated as of March 13,
1998, but effective as provided herein, is made and entered into by and between
Nevada Power Company, a Nevada corporation (the "Company"), and Xxxxxx X.
Xxxxxxx (the "Executive").
WHEREAS, the Executive has been serving as the Vice President, Finance
and Planning, Treasurer and Chief Financial Officer, of the Company;
WHEREAS, the Company considers it in the best interests of its
stockholders to xxxxxx the continuous employment of certain key management
personnel;
WHEREAS, the Company recognizes that, as is the case for most publicly
held companies, the possibility of a Change in Control (as defined herein)
exists;
WHEREAS, the Company wishes to assure itself of both present and
future continuation of management, including in the event of a Change in
Control; and
WHEREAS, the Company wishes to employ the Executive and the Executive
is willing to render services, both on the terms and subject to the conditions
set forth in this Agreement;
NOW, THEREFORE, in consideration of the promises and of the mutual
covenants herein contained, it is agreed as follows:
1. Employment.
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1.1 The Company hereby agrees to employ the Executive, and the Executive
hereby agrees to undertake employment with the Company, upon the terms and
conditions herein set forth.
1.2 Employment will be for a term commencing on March 12, 1998 (the
"Effective Date") and, subject to earlier expiration upon the Executive's
termination under Section 5, expiring on March 11, 2001 (the "Employment Term").
The Employment Term may be extended by mutual written agreement of the parties.
In the event a Change in Control (as defined in Section 6.2) occurs less than
three years before the end of the Employment Term, the Employment Term will be
extended for a period ending on the third anniversary of the occurrence of the
Change in Control, except that in the event the occurrence of a Change in
Control resulting from a filing of a report or proxy statement described in
Section 6.2(iv) occurs less than three years before the end of the Employment
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Term, the Employment Term will be extended for a period ending on the later of
(i) the third anniversary of the occurrence of such Change in Control, or (ii)
the earlier of (a) the day after any transaction, occurrence or event described
in such report or proxy statement (a "Transaction") is consummated, or (b) the
date it is determined by resolution of the Board of Directors of the Company
(the "Board") adopted in good faith that such Transaction will not be
consummated. (The Employment Term, as so extended under this Section 1.2, will
thereafter constitute the "Employment Term" hereunder and is subject to further
extension as provided in this Section 1.2.)
2. Positions and Duties.
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2.1 Positions and Duties. During the Employment Term, the Executive will
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serve in the position of Vice President, Finance and Planning, Treasurer and
Chief Financial Officer, of the Company and will have such powers, duties,
functions, responsibilities and authority as are (I) consistent with the
Executive's position; or (ii) assigned to his office in the Company's bylaws; or
(iii) reasonably assigned to him by the President and Chief Operating Officer of
the Company. The Executive will report directly to the President and Chief
Operating Officer of the Company.
2.2 Commitment. During the Employment Term, the Executive will be the
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Company's full-time employee and, except as may otherwise be approved in advance
in writing by the President and Chief Operating Officer of the Company, and
except during vacation periods and reasonable periods of absence due to
sickness, personal injury or other disability, the Executive will devote
substantially all of his business time and attention to the performance of his
duties to the Company. Notwithstanding the foregoing, the Executive may, (I)
subject to the approval of the Board, serve as a director of a company which is
not engaged in "Competition" (as defined in Section 9.1) with the Company, (ii)
serve as an officer, director or otherwise participate in purely educational,
welfare, social, religious and civic organizations, and (iii) manage personal
and family investments.
3. Place of Performance. In connection with his employment during the
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Employment Term, unless otherwise agreed by the Executive, the Executive will be
based at the Company's principal executive offices. The Executive will
undertake normal business travel on behalf of the Company.
4. Compensation and Related Matters.
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4.1 Compensation.
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(i) Annual Base Salary. During the Employment Term, the Company will
pay to the Executive an annual base salary ("Base Salary") (a) prior to
April 1, 1998, of not less than the Executive's annual base salary in
effect as of the Effective Date, and (b) effective on and after April 1,
1998, of not less than $225,000, which annual base salary may be increased
from time to time by the Board (or the Compensation Committee thereof) in
its sole discretion (and, as so increased, shall thereafter constitute
"Base Salary" hereunder), payable at the times and in the manner
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consistent with the Company's general policies regarding compensation of
executive employees. Base Salary may not be decreased. The Board may from
time to time authorize such additional compensation to the Executive, in
cash or in property, as the Board may determine in its sole discretion to
be appropriate.
(ii) Annual Incentive Compensation. If the Board (or the
Compensation Committee thereof) authorizes any annual cash incentive
compensation or approves any other annual management incentive program or
arrangement, the Executive will be eligible to participate in such plan,
program or arrangement under the general terms and conditions applicable to
executive and management employees. Nothing in this Section 4.1(ii) will
guarantee to the Executive any specific amount of incentive compensation,
or prevent the Board (or the Compensation Committee thereof) from
establishing performance goals and compensation targets applicable only to
the Executive.
(iii) Long-Term Incentive Compensation Plans and Programs. If the
Board (or the Compensation Committee thereof) authorizes any long-term
incentive plan or program, the Executive will be eligible to participate in
such plan or program under the general terms and conditions applicable to
executive and management employees. Nothing in this Section 4.1(iii) will
guarantee the Executive any specific amount of long-term incentive
compensation, or prevent the Board (or the Compensation Committee thereof)
from establishing performance goals and compensation targets applicable
only to the Executive.
4.2 Employee and Executive Benefits. In addition to the compensation
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described in Section 4.1 and subject to the following provisions of Section 4,
the Company will make available to the Executive and his eligible dependents,
subject to the terms and conditions of the applicable plans, including without
limitation the eligibility rules, participation in all Company-sponsored
employee benefit plans, including all employee retirement income and welfare
benefit policies, plans, programs or arrangements, in which senior executives of
the Company participate, including any stock option, stock purchase, stock
appreciation, savings, pension, supplemental executive retirement or other
retirement income or welfare benefit, disability, salary continuation, and any
other deferred compensation, incentive compensation, group and/or executive
life, health, medical/hospital or other insurance (whether funded by actual
insurance or self-insured by the Company), expense reimbursement or other
employee benefit policies, plans, programs or arrangements or any equivalent
successor policies, plans, programs or arrangements that may not exist or be
adopted hereafter by the Company.
4.3 Vacation and Fringe Benefits. During the Employment Term, the
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Executive shall be entitled to vacation in such amounts as determined under and
to be taken in accordance with the Company's normal vacation policies, and the
Executive shall be entitled to the perquisites and other fringe benefits made
available to senior executives of the Company, commensurate with his position
and level of responsibility with the Company. Without limiting the foregoing,
the Company shall provide Executive during the Employment Term with the use of
an automobile in accordance with the Company's Executive Automobile Plan, as it
may be amended from time to time.
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4.4 Expenses. The Company will promptly reimburse the Executive for all
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travel and other business expenses the Executive incurs in order to perform his
duties to the Company under this Agreement in a manner commensurate with the
Executive's position and level of responsibility with the Company, and in
accordance with the Company's policy regarding substantiation of expenses.
5. Termination. Notwithstanding the Employment Term specified in Section 1.2,
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the termination of the Executive's employment hereunder will be governed by the
following provisions:
5.1 Death. In the event of the termination of the Executive's employment
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during the Employment Term by reason of the Executive's death, the Company will
pay to the Executive's beneficiaries or estate, as appropriate, promptly after
the Executive's death, (I) the unpaid Base Salary to which the Executive is
entitled, pursuant to Section 4.1, through the date of the Executive's death,
and (ii) for any accrued but unused vacation days, to the extent and in the
amounts, if any, provided under the Company's usual policies and arrangements.
This Section 5.1 will not limit the entitlement of the Executive's estate or
beneficiaries to any death or other benefits then available to the Executive
under any life insurance, stock ownership, stock options, or other benefit plan
or policy that is maintained by the Company for the Executive's benefit or in
which the Executive participated.
5.2 Disability.
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(i) If the Company determines in good faith that the Executive has
incurred a Disability (as defined below) during the Employment Term, the Company
may give the Executive written notice of its intention to terminate the
Executive's employment. In such event, the Executive's employment with the
Company will terminate effective on the 30/th/ calendar day after receipt of
such notice by the Executive, provided that within the 30 calendar days after
such receipt, the Executive will not have returned to full-time performance of
his duties. The Executive will continue to receive his Base Salary (less any
amounts payable to the Executive for such period under any short- or long-term
disability plan maintained by the Company) and benefits until the date of
termination. In the event of the Executive's Disability, the Company will pay
the Executive, promptly after the Executive's termination, (a) the unpaid Base
Salary to which he is entitled, pursuant to Section 4.1, through the date of the
Executive's termination (less any amounts payable to the Executive for such
period under any short- or long-term disability plan maintained by the Company),
and (b) for any accrued but unused vacation days, to the extent and in the
amounts, if any, provided under the Company's usual policies and arrangements.
This Section 5.2 will not limit the entitlement of the Executive or the
Executive's estate or beneficiaries to any disability or other benefits then
available to the Executive under any disability insurance or other benefit plan
or policy that is maintained by the Company for the Executive's benefit or in
which the Executive participated.
(ii) For purposes of this Agreement, "Disability" will mean the
Executive's incapacity due to physical or mental illness or injury substantially
to perform his
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duties on a full-time basis for six consecutive months and within 30 calendar
days after a notice of termination is thereafter given by the Company the
Executive will not have returned to the full-time performance of the Executive's
duties; provided, however, if the Executive disagrees with a determination to
terminate him because of Disability, the question of the Executive's Disability
will be subject to the certification of a qualified medical doctor agreed to by
the Company and the Executive or, in the event of the Executive's incapacity to
designate a doctor, the Executive's legal representative. In the absence of
agreement between the Company and the Executive, each party will nominate a
qualified medical doctor and the two doctors will select a third doctor, who
will make the determination as to Disability. In order to facilitate such
determination, the Executive will, as reasonably requested by the Company, (a)
make herself available for medical examinations by a doctor in accordance with
this Section 5.2(ii), and (b) grant the Company and any such doctor access to
all relevant medical information concerning her, arrange to furnish copies of
medical records to such doctor, and use his best efforts to cause his own doctor
to be available to discuss his health with such doctor.
5.3 Cause.
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(i) The Company may terminate the Executive's employment hereunder
for Cause (as defined below) during the Employment Term by written notice as
provided in Section 12.6. In the event of the Executive's termination for Cause,
the Company will promptly pay to the Executive (or his representative) the
unpaid Base Salary to which he is entitled, pursuant to Section 4.1, through the
date the Executive is terminated and the Executive will be entitled to no other
compensation or benefits, except as otherwise due to him under applicable law or
pursuant to any benefit plan or policy that is maintained by the Company in
which the Executive participated.
(ii) For purposes of this Agreement, "Cause" means that, prior to
the end of the Employment Term, (a) the Executive shall have committed or
engaged in:
(1) An intentional act of fraud, embezzlement or theft in
connection with the Executive's duties or in the course of the
Executive's employment with the company;
(2) An intentional breach of any of the express covenants set
forth in Sections 9.1, 9.2, or 9.3;
(3) Intentional wrongful damage to property of the Company or
any Subsidiary (as defined below);
(4) Gross negligence or gross misconduct against the Company
or another employee, or in carrying out the Executive's duties and
responsibilities;
and any such act shall have been materially harmful to the Company, or (b) the
Executive shall have engaged in intentional and repeated failure substantially
to carry out the
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Executive's duties and responsibilities (other than any such failure resulting
from the Executive's incapacity due to physical or mental illness that qualifies
as a Disability or would qualify as a Disability is such incapacity continued
for the required length of time), which failure is not or cannot be cured within
five business days after the Company has given written notice to the Executive
specifying in detail the particulars of the acts or omissions deemed to
constitute such failure. For purposes of this Agreement, no act or failure to
act on the part of the Executive shall be deemed "intentional" if it was due
primarily to an error in judgment or negligence, but shall be deemed
"intentional" only if done or omitted to be done by the Executive not in good
faith and without reasonable belief that the Executive's action or omission was
in the best interest of the Company. Notwithstanding the foregoing, the
Executive shall not be deemed to have been terminated for "Cause" hereunder
unless and until there shall been delivered to the Executive a written notice
from the Company stating that it has determined that the Executive had committed
an act constituting "Cause" as herein defined and specifying the particulars
thereof in detail. Nothing herein will limit the right of the Executive or the
Executive's beneficiaries to contest the validity or propriety of any such
determination.
5.4 Termination.
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(i) Involuntary Termination. The Executive's employment hereunder
may be terminated during the Employment Term by the Company for any reason other
than Death, disability, or for Cause by written notice as provided in Section
12.6. In the event of such an involuntary termination, the Executive will be
entitled to the payments and benefits provided in Section 5.5. This Section
5.4(i) and Section 5.5, however, will not limit the entitlement of the Executive
to any other benefits then available to the Executive under any benefit plan or
policy that is maintained by the Company for the Executive's benefit or in which
the Executive participated. The Executive will be treated for purposes of this
Agreement as having been involuntarily terminated by the Company for reasons
other than Death, Disability, or for Cause if the Executive terminates his
employment with the Company for any of the following reasons (each, a "Good
Reason") prior to the date of the Executive's Death, Disability, or on which the
Executive has committed or engaged in an act constituting Cause: (a) the Company
has materially breached any provision of this Agreement and within 10 calendar
days after notice thereof from the Executive, the Company fails to cure such
breach; (b) a successor or assign (whether direct or indirect, by purchase,
merger, consolidation, operation of law or otherwise) to all or substantially
all of the business and/or assets of the Company fails to assume all duties,
obligations and liabilities of the Company under the Agreement pursuant to
Section 12.2(I); (c) a reduction in the scope or value of the aggregate benefits
and incentive compensation described in Sections 4.1(iii), 4.2 and 4.3 provided
to the Executive or the termination or denial of the Executive's rights to such
benefits or incentive compensation, any of which is not remedied by the Company
with 10 calendar days after receipt by the Company of written notice from the
Executive of such reduction or termination; (d) the Board fails to appoint the
Executive as Vice President, Corporate Services, or the Executive is removed
from such position; (e) a reduction in the Executive's Base Salary or the
opportunity to earn annual incentive compensation under Section 4.1(ii) on a
basis at least as favorable to the Executive (in terms of each of the amounts of
benefits, levels of coverage and performance measures and levels
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of required performance) as the benefits payable thereunder prior to the
reduction, or the failure to pay the Executive Base Salary or incentive
compensation earned when due.
(ii) Voluntary Termination. The Executive may voluntarily terminate
the Agreement at any time by notice to the Company as provided in Section 12.6.
In the event of the Executive's voluntary termination, the Company will promptly
pay the Executive (a) the unpaid Base Salary to which the Executive is entitled,
pursuant to Section 4.1, through the date of the Executive's termination, and
(b) for any accrued but unused vacation days, to the extent and in the amounts,
if any, provided under the Company's usual policies and arrangements. This
Section 5.4(ii) will not limit the entitlement of the Executive to any other
benefits then available to the Executive under any benefit plan or policy that
is maintained by the company for the Executive's benefit or in which the
Executive participated.
5.5 Termination Payments and Benefits.
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(i) Form and Amount. Upon the Executive's involuntary termination
other than by reason of Death, Disability, or for Cause as provided in Section
5.4(i), the Company will promptly pay or provide to the Executive:
(a) The unpaid Base Salary to which the Executive is entitled,
pursuant to Section 4.1, through the date of the Executive's termination;
(b) For any accrued but unused vacation days, to the extent
and in the amounts, if any, provided under the Company's usual policies and
arrangements;
(c) A lump sum payment within five (5) business days after
termination in an amount equal to two times the sum of (A) the annual rate
of Base Salary (prior to any deferrals or reductions under qualified or
non-qualified plans) being paid to the Executive immediately prior to
termination (or immediately prior to any reduction therein occurring prior
to termination, if greater), plus (B) the aggregate annual bonus, incentive
or other payments of cash compensation (determined without regard to any
deferral election) to which the Executive would have been entitled in
accordance with Section 4.1(ii) under the bonus, incentive, profit-sharing,
performance, discretionary pay or similar agreement, policy, plan, program
or arrangement of the Company in which the Executive was participating for
the year in which the termination occurs (or for the year in which any
prior reduction therein occurs, if greater) based on the assumption that
target performance goals for such year would be met and such payments would
be made; and
(d) For a period of 24 months following the termination (the
"Continuation Period"), the Company will arrange to provide the Executive
with health (including medical/hospital, dental and vision) and life
benefits substantially similar to those that the Executive was receiving or
entitled to receive immediately prior to termination (or, if greater,
immediately prior to the reduction, termination, or denial described in
Section 5.4(i)(c). Benefits otherwise receivable by the Executive pursuant
to this Section 5.5(i)(d) will be reduced to the extent comparable benefits
are
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actually received by or in respect of the Executive from another employer
during the Continuation Period following the Executive's termination, and
any such benefits actually received shall be reported by the Executive or
other recipient to the Company.
(ii) Maintenance of Benefits. During the Continuation Period set
forth in Section 5.5(i)(d), the Company will use its best efforts to maintain in
full force and effect for the continued benefit of the Executive all benefits
referenced therein or will arrange to make available to the Executive benefits
substantially similar to the referenced benefits. Such benefits will be
provided to the Executive on the same terms and conditions (including employee
contributions toward the premium payments) under which the Executive was
entitled to participate immediately prior to the Executive's termination (or, if
more favorable to the Executive, immediately prior to the reduction,
termination, or denial described in Section 5.4(i)(c)). To the extent, however,
the coverage or benefits provided under Section 5.5(i)(d) results in the
Executive or any dependent or beneficiary thereof incurring additional federal,
state or local taxes that would otherwise not have been incurred in connection
with the provision of such coverage or benefits had the Executive's employment
not been terminated, the Company shall promptly pay the Executive, dependent or
beneficiary, as the case may be, on an after-tax basis, an additional payment in
an amount equal to all taxes, including interest and penalties thereon, imposed
as a result of such coverage or benefits.
(iii) Resignation. If at termination the Executive is a member of
the Board or a board of any affiliate of the Company, no benefit will be paid or
made available under Section 5.5(i)(c) or Section 5.5(i)(d) unless the Executive
first executes and delivers to the Company a resignation from membership on the
Board and from membership on the boards of all affiliates of the Company, as the
case may be, such resignation to be effective on receipt of the payment to which
the Executive is entitled under Section 5.5(i)(c).
6. Change in Control Provisions.
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6.1 Impact of Change in Control. In the event of a "Change in Control" of
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the Company, as defined in Section 6.2, (i) if the Executive's employment is
involuntarily terminated during the Employment Term without Cause after the
Change in Control, (a) the covenants of Sections 9.1, 9.3, and 10 will be
inapplicable to the Executive, and (b) the covenant of Section 9.2 will expire
on the third anniversary of the date of termination of the Executive's
employment, and (ii) the definition of Good Reason, as set forth in Section
5.4(i) above, will be expanded to include the following:
(a) A significant adverse change in the nature or scope of
authorities, powers, functions, responsibilities or duties attached to the
positions held by the Executive from those authorities, powers, functions,
responsibilities or duties which the Executive held immediately prior to
the Change in Control;
(b) A determination by the Executive (which determination will be
conclusive and binding upon the parties hereto provided it has been made in
good
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faith and in all events the Executive's determination will be presumed to
have been made in good faith unless otherwise shown by the Company by clear
and convincing evidence) that a change in circumstances has occurred
following the Change in Control, including, without limitation, a change in
the scope of the business or other activities for which the Executive was
responsible immediately prior to the Change in Control, which has rendered
the Executive substantially unable to carry out, has substantially hindered
the Executive's performance of, or has caused the Executive to suffer a
substantial reduction in, any of the authorities, powers, functions,
responsibilities or duties attached to any of the Executive's positions
immediately prior to such Change in Control, which situation is not
remedied within 10 calendar days after written notice to the Company from
the Executive of such determination; or
(c) The relocation of the Company's principal
executive offices and the Executive's principal location of
work is then in such offices, or requirement that the
Executive have the Executive's principal location of work
changed, to any location thereof immediately preceding the
Change in Control or the requirement that the Executive
travel away from the Executive's office in the course of
discharging the Executive's responsibilities or duties
hereunder at least 20% more (in terms of aggregate days in
any calendar year or in any calendar quarter when annualized
for purposes of comparison to any prior year) than was
required of Executive in any of the three full years
immediately prior to such Change in Control without, in
either case, the Executive's prior written consent.
6.2 Definition of Change in Control. For purposes of this Agreement, a
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"Change in Control" will be deemed to occur if at anytime during the Employment
Term any of the following events occur:
(i) The Company is merged, consolidated or reorganized into or with
another corporation or other legal person, and as a result of such merger,
consolidation or reorganization less than 65% of the combined voting power
of the then-outstanding securities or interests entitled to vote generally
in the election of directors or other controlling persons (the "Voting
Stock") of such corporation or person immediately after such transaction
are held in the aggregate by the holders of Voting Stock of the Company
immediately prior to such transaction;
(ii) The Company sells or otherwise transfers all or substantially
all of its assets to another corporation or other legal person, and as a
result of such sale or transfer less than 65% of the combined voting power
of the then-outstanding Voting Stock of such corporation or person
immediately after such sale or transfer is held in the aggregate (directly
or through ownership of Voting Stock of the Company or Subsidiary (as
defined herein)) by the holders of the Voting Stock of the Company
immediately prior to such sale or transfer;
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(iii) There is a report filed on Schedule 13D or Schedule 14D-1 (or
any successor schedule, form or report), each as promulgated pursuant to
the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
disclosing that any person (as the term "person" is used in Section
13(d)(3) or Section 14(d)(2) of the Exchange Act) has become the beneficial
owner (as the term "beneficial owner" is defined under rule 13d-3 or any
successor rule or regulation promulgated under the Exchange Act) of
securities representing 20% or more of the combined voting power of the
then-outstanding Voting Stock of the Company;
(iv) The Company files a report or proxy statement with the
Securities and Exchange Commission pursuant to the Exchange Act disclosing
in response to Form 8-K or Schedule 14A (or any successor schedule, form or
report or item therein) that a change in control of the Company will occur
in the future pursuant to a then-existing contract or transaction which
when consummated would be a Change in Control determined without regard to
this Section 6.2(iv);
(v) If, during any period of two consecutive years, individuals who
at the beginning of any such period constitute the Directors of the Company
cease for any reason to constitute at least a majority thereof; provided,
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however, that for purposes of this Section 6.2(v) each Director who is
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first elected, or first nominated for election by the Company's
stockholders, by a vote of at least two-thirds of the Directors of the
Company (or a committee thereof) then still in office who were Directors of
the Company at the beginning of any such period will be deemed to have
been a Director of the Company at the beginning of such period; or
(vi) The approval by the shareholders of the Company of a complete
liquidation or dissolution of the Company.
Notwithstanding the foregoing provisions of Sections 6.2(iii) or 6.2(iv) above,
unless otherwise determined in a specific case by majority vote of the Board, a
"Change in Control" shall not be deemed to have occurred for purposes of
Sections 6.2(iii) or 6.2(iv) solely because (A) the Company, (B) an entity in
which the Company directly or indirectly beneficially owns 50% or more of the
outstanding Voting Stock (a "Subsidiary"), or (C) any Company-sponsored employee
stock ownership plan or any other employee benefit plan of the Company or any
Subsidiary either files or becomes obligated to file a report or a proxy
statement under or in response to Schedule 13D, Schedule 14D-1, Form 8-K, or
Schedule 14A (or any successor schedule, form or report or item therein) under
the Exchange Act disclosing beneficial ownership by it of shares of Voting
Stock, whether in excess of 20% or otherwise, or because the Company reports
that a Change in Control of the Company has occurred or will occur in the future
by reason of such beneficial ownership.
7. Certain Additional Payments by the Company.
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(i) Anything in this Agreement to the contrary notwithstanding, if it is
determined (as hereafter provided) that any payment or distribution by the
Company or any of its affiliates to or for the benefit of the Executive, whether
paid or payable or distributed or distributable
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pursuant to the terms of this Agreement or otherwise pursuant to or by reason of
any other agreement, policy, plan, program or arrangement, including without
limitation any stock option, stock appreciation right or similar right, or the
lapse or termination of any restriction on or the vesting or exercisability of
any of the foregoing (a "Payment"), would be subject to the excise tax imposed
by Section 4999 of the Code (or any successor provision thereto) by reason of
being considered "contingent on a change in ownership or control" of the
Company, within the meaning of Section 280G of the Code (or any successor
provision thereto) or to any similar tax imposed by state or local law, or any
interest or penalties with respect to such tax (such tax or taxes, together with
any such interest and penalties, are hereafter collectively referred to as the
"Excise Tax"), then the Executive will be entitled to receive an additional
payment or payments (collectively, a "Gross-Up Payment") in an amount such that,
after payment by the Executive of all taxes (including any interest or penalties
imposed with respect to such taxes), including any Excise Tax, imposed upon the
Gross-Up Payment, the Executive retains an amount of the Gross-Up Payment equal
to the Excise Tax imposed upon the Payments. No Gross-Up Payment will be made
with respect to the Excise Tax, if any, attributable to (a) any incentive stock
option, as defined by Section 422 of the Code ("ISO") granted prior to the
execution of this Agreement (unless a comparable Gross-Up Payment has
theretofore been made available with respect to such option), or (b) any stock
appreciation or similar right, whether or not limited, granted in tandem with
any ISO described in clause (a).
(ii) Subject to the provisions of Section 7(vi) hereof, all determinations
required to be made under this Section 7, including whether an Excise Tax is
payable by the Executive and the amount of such Excise Tax and whether a Gross-
Up Payment is required to be paid by the Company to the Executive and the amount
of such Gross-Up Payment, will be made by a nationally recognized firm of
certified public accountants (the "Accounting Firm") selected by the Executive
in his sole discretion. The Executive will direct the Accounting Firm to submit
its determination and detailed supporting calculations to both the Company and
the Executive within 15 calendar days after the Executive's termination, if
applicable, and any other such time or times as may be requested by the Company
or the Executive. If the Accounting Firm determines that any Excise Tax is
payable by the Executive, the Company will pay the required Gross-Up Payment to
the Executive within five business days after receipt of such determination and
calculations with respect to any Payment to the Executive. If the Accounting
Firm determines that no Excise Tax is payable by the Executive, it will, at the
same time as it makes such determination, furnish the Company and the Executive
an opinion that the Executive has substantial authority not to report any Excise
Tax on the Executive's federal, state, local income or other tax return. Any
determination by the Accounting Firm as to the amount of the Gross-Up Payment
will be binding upon the Company and the Executive. As a result of the
uncertainty in the application of Section 4999 of the C ode (or any successor
provision thereto) and the possibility of similar uncertainty regarding
applicable state or local tax law at the time of any determination by the
Accounting Firm hereunder, it is possible that Gross-Up Payment that will not
have been made by the Company have been made (an "Underpayment"), consistent
with the calculations required to be made hereunder. In the event that the
Company exhausts or fails to pursue its remedies pursuant to Section 7(vi)
hereof and the Executive thereafter is required to make a payment of any Excise
Tax, the Executive will direct the Accounting
11
Firm to determine the amount of the Underpayment that has occurred and to submit
its determination and detailed supporting calculations to both the Company and
the Executive as promptly as possible. Any such Underpayment will be promptly
paid by the Company to, or for the benefit of, the Executive within five
business days after receipt of such determination and calculations.
(iii) The Company and the Executive will each provide the Accounting Firm
access to and copies of any books, records and documents in the possession of
the Company or the Executive, as the case may be, reasonably requested by the
Accounting Firm, and other cooperate with the Accounting Firm in connection with
the preparation and issuance of the determinations and calculations contemplated
by Section 7(ii) hereof.
(iv) The federal, state and local income or other tax returns filed by
the Executive will be prepared and filed on a consistent basis with the
determination of the Accounting Firm with respect to the Excise Tax payable by
the Executive. The Executive will make proper payment of the amount of any
Excise Tax, and at the request of the Company, provide to the Company true and
correct copies (with any amendments) of the Executive's federal income tax
return as filed with the Internal Revenue Service and corresponding state and
local tax returns, if relevant, as filed with the applicable taxing authority,
and such other documents reasonably requested by the Company, evidencing such
payment. If prior to the filing of the Executive's federal income tax return, or
corresponding state or local tax return, if relevant, the Accounting Firm
determines that the amount of the Gross-Up Payment should be reduced, the
Executive will within five business days pay to the Company the amount of such
reduction.
(v) The fees and expenses of the Accounting Firm for its services in
connection with the determinations and calculations contemplated by Sections
7(ii) and (iv) hereof will be borne by the Company. If such fees and expenses
are initially paid by the Executive, the Company will reimburse the Executive
the full amount of such fees and expenses within five business days after
receipt from the Executive of a statement therefor and reasonable evidence of
his payment thereof.
(vi) The Executive will notify the Company in writing of any claim by the
Internal Revenue Service or other taxing authority that, if successful, would
require the payment by the Company of a Gross-Up Payment. Such notification
will be given as promptly as practicable but no later than 10 business days
after the Executive actually receives notice of such claim and the Executive
will further apprise the Company of the nature of such claim and the date on
which such claim is requested to be paid (in each case, to the extent known by
the Executive). The Executive will not pay such claim prior to the earlier of
(a) the expiration of the 30-calendar-day period following the date on which the
Executive gives such notice to the Company, and (b) the date that any payment of
amount with respect to such claim is due. If the Company notifies the Executive
in writing prior to the expiration of such period that it desires to contest
such claim, the Executive will:
(a) provide the Company with any written records or documents in
the Executive's possession relating to such claim reasonably requested by
the Company;
12
(b) take such action in connection with contesting such claim as
the Company will reasonably request in writing from time to time, including
without limitation accepting legal representation with respect to such
claim by an attorney competent in respect of the subject matter and
reasonably selected by the Company;
(c) cooperate with the Company in good faith in order to
effectively contest such claim; and
(d) permit the Company to participate in any proceedings relating
to such claim;
provided, however, that the Company will bear and pay directly all costs and
expenses (including interest and penalties) incurred in connection with such
contest and will indemnify and hold harmless the Executive, on an after-tax
basis, for and against any Excise Tax or income tax, including interest and
penalties with respect thereto, imposed as a result of such representation and
payment of costs and expenses. Without limiting the foregoing provisions of
this Section 7(vi), the Company will control all proceedings taken in connection
with the contest of any claim contemplated by this Section 7(vi) and, at its
sole option, may pursue or forego any and all administrative appeals,
proceedings, hearings and conferences with the taxing authority in respect of
such claim (provided, however, that the Executive may participate therein at the
Executive's own cost and expense) and may, at its option, either direct the
Executive to pay the tax claimed and xxx for a refund or contest the claim in
any permissible manner, and the Executive agrees to prosecute such contest to a
determination before any administrative tribunal, in a court of initial
jurisdiction and in one or more appellate courts, as the Company will determine;
provided, however, that if the Company directs the Executive to pay the tax
claimed and xxx for a refund, the Company will advance the amount of such
payment to the Executive on an interest-free basis and will indemnify and hold
the Executive harmless, on an after-tax basis, from any Excise Tax or income or
other tax, including interest or penalties with respect thereto, imposed with
respect to such advance; and provided further, however, that any extension of
the statute of limitations relating to payment of taxes for the taxable year of
the Executive with respect to which the contested amount is claimed to be due is
limited solely to such contested amount. Furthermore, the Company's control of
any such contested claim will be limited to issues with respect to which a
Gross-Up Payment would be payable hereunder and the Executive will be entitled
to settle or contest, as the case may be, any other issue raised by the Internal
Revenue Service or any other taxing authority.
(vii) If, after the receipt by the Executive of an amount advanced
by the Company pursuant to Section 7(vi) hereof, the Executive receives any
refund with respect to such claim, the Executive will (subject to the Company's
complying with the requirements of Section 7(vi) hereof) promptly pay to the
Company the amount of such refund (together with any interest paid or credited
thereon after any taxes applicable thereto). If, after the receipt by the
Executive of an amount advanced by the Company pursuant to Section 7(vi) hereof,
a determination is made that the Executive will not be entitled to any refund
with respect to such claim and the Company does not notify the Executive in
writing of its intent to contest
13
such denial or refund prior to the expiration of 30 calendar days after such
determination, then such advance will be forgiven and will not be required to be
repaid and the amount of such advance will offset, to the extent thereof, the
amount of Gross-Up Payment required to be paid by the Company to the Executive
pursuant to this Section 7.
8. Mitigation and Offset. The payment of severance compensation by the
---------------------
Company to the Executive in accordance with the terms of the Agreement is hereby
acknowledged by the Company to be reasonable, and the Executive is under no
obligation to mitigate damages or the amount of any payment provided for
hereunder by seeking other employment or otherwise; nor will any profits,
income, earnings or other benefits from any source whatsoever create any
mitigation, offset, reduction or any other obligation on the part of the
Executive hereunder or otherwise, except as expressly provided in the last
sentence of Section 5.5(i)(d).
9. Competition; confidentiality; Nonsolicitation
---------------------------------------------
9.1 (i) Subject to section 6.1(i), the Executive hereby covenants and
agrees that during the employment Term and for one year following the Employment
Term and for one year following the Employment Term he will not, without the
prior written consent of the Company, engage in Competition (as defined below)
with the Company. For purposes of this Agreement, if the Executive takes any of
the following actions he will be engaged in "Competition": engaging in or
carrying on, directly or indirectly, any enterprise, whether as an advisor,
principal, agent, partner, officer, director, employee, stockholder, associate
or consultant to any person, partnership, corporation or any other business
entity, that is principally engaged in the business of the generation,
transmission, or distribution of electricity in States in which the Company or
its affiliates has significant operations; provided, however, that "Competition"
will not include (a) the mere ownership of securities in any enterprise and
exercise of rights appurtenant thereto, or (b) participation in management of
any enterprise or business operation thereof other than in connection with the
competitive operation of such enterprise.
(ii) Subject to Section 6.1(i), the Executive hereby covenants and
agrees that during the Employment Term and for three years following the
Employment Term, he will not assist a third party in preparing or making an
unsolicited bid for the Company, engaging in a proxy contest with the Company,
or engaging in any other similar activity.
9.2 During the Employment Term, the Company agrees that it will disclose
to Executive its confidential or proprietary information (as defined in this
Section 9.2) to the extent necessary for Executive to carry out the Executive's
obligations under this Agreement. Subject to Section 6.1(i), the Executive
hereby covenants and agrees that he will not, without the prior written consent
of the Company, during the Employment Term or thereafter, disclose to any person
not employed by the Company, or use in connection with engaging in Competition
with the Company, any confidential or proprietary information of the Company.
For purposes of this Agreement, the term "confidential or proprietary
information" will include all information of any nature and in any form that is
owned by the Company and that is not publicly available or generally known to
persons engaged in businesses similar or
14
related to those of the Company. Confidential information will include, without
limitation, the Company's financial matters, customers, employees, industry
contracts, and all other secrets and all other information of a confidential or
proprietary nature. The foregoing obligations imposed by this Section 9.2 will
cease if such confidential or proprietary information will have become, through
no fault of the Executive, generally known to the public or the Executive is
required by law to make disclosure (after giving the Company notice and an
opportunity to contest such requirement).
9.3 Subject to Section 6.1(i), the Executive hereby covenants and agrees
that during the Employment Term and for one year thereafter the Executive will
not attempt to influence, persuade or induce, or assist any other person in so
persuading or inducing, any employee of the Company to give up, or to not
commence, employment or a business relationship with the Company.
10. Post-Termination Assistance. Subject to Section 6.1(i), the Executive
---------------------------
agrees that after the Executive's employment with the Company has terminated,
the Executive will provide, upon reasonable notice, such information and
assistance to the Company as may reasonably be requested by the Company in
connection with any litigation in which it or any of its affiliates is or may
become a party; provided, however, that the Company agrees to reimburse the
Executive for any related out-of-pocket expenses, including travel expenses.
11. Survival. The expiration or termination of the Employment Term will not
--------
impair the rights or obligations of any party hereto that accrue hereunder prior
to such expiration or termination, except to the extent specifically stated
herein. In addition to the foregoing, the Executive's covenants contained in
Sections 9.12, 9.2, 9.3, and 10, and the Company's obligations under Sections 5,
7, and 12.1 will survive the expiration or termination of employment for any
reason whatsoever.
12. Miscellaneous Provisions.
------------------------
12.1 Legal Fees and Expenses. It is the intent of the Company that the
-----------------------
Executive not be required to incur legal fees and the related expenses
associated with the interpretation, enforcement or defense of Executive's rights
under this Agreement by litigation or otherwise because the cost and expense
thereof would substantially detract from the benefits intended to be extended to
the Executive hereunder. Accordingly, if it should appear to the Executive that
the Company has failed to comply with any of its obligations under this
Agreement or in the event that the Company or any other person takes or
threatens to take any action to declare this Agreement void or unenforceable, or
institutes any litigation or other action or proceeding designed to deny, or to
recover from, the Executive the benefits provided or intended to be provided to
the Executive hereunder, the Company irrevocably authorizes the Executive from
time to time to retain counsel of Executive's choice, at the expense of the
Company as hereafter provided, to advise and represent the Executive in
connection with any such interpretation, enforcement or defense, including
without limitation, the initiation or defense of any litigation or other legal
actions, whether by or against the Company or any director, officer, stockholder
or other person affiliated with the Company, in any jurisdiction.
Notwithstanding any existing or prior attorney-client relationship between the
Company and
15
such counsel, the Company irrevocably consents to the Executive's entering into
an attorney-client relationship with such counsel, and in that connection the
Company and the Executive agree that a confidential relationship shall exist
between the Executive and such counsel. Without respect to whether the Executive
prevails, in whole or in part, in connection with any of the foregoing, the
Company will pay and be solely financially responsible for any and all
attorneys' and related fees and expenses incurred by the Executive in connection
with any of the foregoing.
12.2 Successors and Binding Agreement.
--------------------------------
(i) The company will require any successor (whether direct or
indirect, by purchase, merger, consolidation, reorganization, operation of
law or otherwise) to all or substantially all of the business or assets of
the Company, by agreement in form and substance satisfactory to the
Executive, expressly to assume and agree to perform this Agreement in the
same manner and to the same extent the Company would be required to perform
if no such succession had taken place. This Agreement will be binding upon
and inure to the benefit of the Company and any successor to the Company,
including without limitation any persons acquiring directly or indirectly
all or substantially all of the business or assets of the Company where by
purchase, merger, consolidation, reorganization, operation of law or
otherwise (and such successor shall thereafter be deemed the "Company" for
the purposes of this Agreement), but will not otherwise be assignable,
transferable or delegable by the Company.
(ii) This Agreement will inure to the benefit of and be enforceable
by the Executive's personal or legal representatives, executors,
administrators, successors, heirs, distributees and legatees.
(iii) This Agreement is personal in nature and neither of the parties
hereto shall, without the consent of the other, assign, transfer or
delegate this Agreement or any rights or obligations hereunder except as
expressly provided in Sections 12.2(i) and 12.2(ii). Without limiting the
generality or effect of the foregoing, the Executive's right to receive
payments hereunder will not be assignable, transferable or delegable,
whether by pledge, creation of a security interest, or otherwise, other
than by a transfer by Executive's will or by the laws of descent and
distribution and, in the event of any attempted assignment or transfer
contrary to this Section 12.2(iii), the Company shall have no liability to
pay any amount so attempted to be assigned, transferred or delegated.
12.3 Governing Law. This Agreement will be governed, construed,
-------------
interpreted and enforced in accordance with the substantive laws of the State of
Nevada, without regard to conflicts of law principles.
12.4 Withholding of Taxes. The Company may withhold from any amounts
--------------------
payable under this Agreement all federal, state, city or other taxes as the
Company is required to withhold pursuant to any law or government regulation or
ruling.
16
12.5 Severability. Any provision of this Agreement that is deemed invalid,
------------
illegal or unenforceable in any jurisdiction will, as to that jurisdiction, be
ineffective to the extent of such invalidity, illegality or unenforceability,
without affecting in any way the remaining provisions hereof in such
jurisdiction or rendering that or any other provisions of this Agreement
invalid, illegal, or unenforceable in any other jurisdiction. If any covenant
should be deemed invalid, illegal or unenforceable because its scope is
considered excessive, such covenant will be modified so that the scope of the
covenant is reduced only to the minimum extent necessary to render the modified
covenant valid, legal and enforceable.
12.6 Notices. For all purposes of this Agreement, all communications,
-------
including without limitation notices, consents, requests or approvals, required
or permitted to be given hereunder will be in writing and will be deemed to have
been duly given when hand delivered or dispatched by electronic facsimile
transmission (with receipt thereof confirmed), or five business days after
having been mailed by United States registered or certified mail, return receipt
requested, postage prepaid, or three business days after having been sent by a
nationally recognized overnight courier service such as Federal Express, UPS, or
Purolator, addressed to the Company (to the attention of the Secretary of the
Company) at its principal executive offices and to the Executive at his
principal residence, or to such other address as any party may have furnished to
the other in writing and in accordance herewith, except that notices of changes
of address will be effective only upon receipt.
(i) To The Company. If to the Company, addressed to the attention of
--------------
the Secretary at 0000 Xxxx Xxxxxx Xxxxxx, Xxx Xxxxx, Xxxxxx 00000.
(ii) To The Executive. If to the Executive, to him at 0000 Xxxxxxx
----------------
Xxxxx, Xxx Xxxxx, Xxxxxx 00000.
12.7 Counterparts. This Agreement may be executed in several counterparts,
------------
each of which will be deemed to be an original, but all of which together will
constitute one and the same Agreement.
12.8 Entire Agreement. The terms of this Agreement are intended by the
----------------
parties to be the final expression of their agreement with respect to the
Executive's employment by the Company and may not be contradicted by evidence of
any prior or contemporaneous agreement. The parties further intend that this
Agreement will constitute the complete and exclusive statement of its terms and
that no extrinsic evidence whatsoever may be introduced in any judicial,
administrative or other legal proceeding to vary the terms of this Agreement.
12.9 Amendments; Waivers. This Agreement may not be modified, amended, or
-------------------
terminated except by an instrument in writing, signed by the Executive and the
Company. Failure on the part of either party to complain of any action or
omission, breach or default on the part of the other party, no matter how long
the same may continue, will never be deemed to be a waiver of any rights or
remedies hereunder, at law or in equity. The Executive or the Company may waive
compliance by the other party with any provision of this Agreement that such
other party was or is obligated to comply with or perform only through an
executed
17
writing; provided, however, that such waiver will not operate as a waiver of, or
estoppel with respect to, any other or subsequent failure.
12.10 No Inconsistent Actions. The parties will not voluntarily
-----------------------
undertake or fail to undertake any action or course of action that is
inconsistent with the provisions or essential intent of this Agreement.
Furthermore, it is the intent of the parties hereto to act in a fair and
reasonable manner with respect to the interpretation and application of the
provisions of this Agreement.
12.11 Headings and Section References. The headings used in this
-------------------------------
Agreement are intended for convenience or reference only and will not in any
manner amplify, limit, modify or otherwise be used in the construction or
interpretation of any provision of this Agreement. All section references are
to sections of this Agreement, unless otherwise noted.
12.12 Interest. Without limiting the rights of the Executive at law or in
--------
equity, if the Company fails to make any payment or provide any benefit required
to be made or provided hereunder on a timely basis, the Company will pay
interest on the amount or value thereof at an annualized rate of interest equal
to the so-called composite "prime rate" as quoted from time to time during the
relevant period in the Northeast Edition of The Wall Street Journal. Such
-----------------------
interest will be payable as it accrues on demand. Any change in such prime rate
will be effective on and as of the date of such change.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date and year first above written, but effective as provided in Section 1.2.
Xxxxxx X. Xxxxxxx
--------------------------------
Xxxxxx X. Xxxxxxx
NEVADA POWER COMPANY,
a Nevada corporation
Xxxxxxx X. Xxxxxx
--------------------------------
Xxxxxxx X. Xxxxxx
18
