Exhibit 10.2
SECOND AMENDMENT TO THE EMPLOYMENT AGREEMENT
BETWEEN PINNACLE WEST CAPITAL CORPORATION
AND XXXXXXX XXXXX, DATED MARCH 28, 1991
WHEREAS, PINNACLE WEST CAPITAL CORPORATION, an Arizona corporation (the
"Company") and XXXXXXX XXXXX (the "Employee") entered into an employment
agreement on March 28, 1991 and that agreement was thereafter amended on
February 5, 1997 to among other things, extend its term for a period of two
years (the Agreement"), pursuant to which the Company retained the services of
the Employee as President and Chief Executive Officer; and
WHEREAS, the Employee intended to retire on or before December 31, 1996; and
WHEREAS, the Company desires to extend the Agreement for an additional period of
two years in order to continue to have the right to the services of the Employee
as Chief Executive Officer and the Employee has agreed to postpone his
retirement and continue his employment under such terms; and
WHEREAS, the Company and the Employee desire to amend the Agreement to extend
his employment as Chief Executive Officer for an additional two years and to
revise the Agreement's provisions relating to the Employee's right to receive
certain employee benefits provided by the Company; and
NOW, THEREFORE, in consideration of the foregoing, the parties hereby agree as
follows:
1. This Amendment shall amend only the provisions of the
Agreement as set forth herein and those provisions not expressly amended hereby
shall remain in full force and effect.
2. Section 1.1 is hereby amended in its entirety to read as
follows:
1.1 Employment as Chief Executive Officer of the Company. The
Company does hereby employ and engage the Employee as Chief Executive
Officer of the Company, and the Employee does hereby accept and agree
to such engagement and employment. The Employee's duties during the
employment period shall be such executive, managerial and board of
director duties as are set forth hereunder, as the Board of Directors
of the Company (the "Board") shall from time to time prescribe, and as
shall be provided in the Bylaws of the Company. The Employee will
devote the preponderance of his time, energy and skill to the
performance of his duties for
the Company and for the benefit of the Company, subject to reasonable
vacations, other approved absences and absences due to illness.
Furthermore, the Employee will exercise due diligence and care in the
performance of his duties for the Company under this Employment
Agreement.
3. Section 2.1(a) is hereby amended to read as follows:
(a) The Employee shall be employed by the Company for the
duties as set forth in Section 1.1 for the two (2) year period
commencing on February 5, 1997, and ending on February 5, 1999, (the
"Employment Term"), unless the employment of the Employee terminates
earlier in accordance with the provisions of this Employment Agreement.
4. Section 3.3 is hereby amended to add the following
subsections at the end thereof:
(d) If the benefits to which the Employee is entitled under
Section 3.3(a) under the Company's "employee welfare benefit plans" (as
that term is defined in Section 3(1) of ERISA) during his Employment
Term and/or following his retirement from the Company are reduced as a
result of the Employee's agreement to postpone his retirement until the
end of the Employment Term or if the Employee incurs additional costs
to maintain the same level of benefits under such plans he would have
received but for the postponement of his retirement, the Company shall
(i) purchase benefits for the Employee, which, when added to the
benefits provided under the Company's employee welfare benefit plans,
equal the benefits that the Employee would have received under such
plans prior to January 1, 1997 during his Employment Term and/or
following his retirement from the Company, and (ii) reimburse the
Employee for the additional costs incurred by the Employee to maintain
benefits during his Employment Term and/or following his retirement
from the Company which are equivalent to the benefits under such plans
as in effect prior to January 1, 1997.
(e) If the Employee is required to recognize additional
taxable income with respect to the benefits and reimbursements provided
under Section 3.3(d) under Section 3.3(d), the Company shall pay the
Employee an additional amount sufficient to pay all additional taxes
incurred by the Employee as a result of Section 3.3(d) and this Section
3.3(e).
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5. This Amendment shall be effective as of February 5, 1997.
IN WITNESS WHEREOF, the Company has caused this Amendment to
be executed by its duly authorized officers, and the Employee has executed this
Amendment this ____ day of ______________, 1997.
PINNACLE WEST CAPITAL CORPORATION
By Xxxxxxx Xxxxx
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Its Chairman of the Board and
Chief Executive Officer
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ATTEST:
By
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Its
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EMPLOYEE
Xxxxxxx Xxxxx
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Xxxxxxx Xxxxx
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