EXHIBIT 10(B)
CHANGE IN CONTROL AGREEMENT -- CEO
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THIS AGREEMENT, dated May 21, 2001, is made by and between
Sierra Pacific Resources, a Nevada corporation (the "Company"), and Xxxxxx X.
Xxxxxxx (the "Executive").
WHEREAS, the Company considers it essential to the best
interests of its stockholders to xxxxxx the continued employment of key
management personnel; and
WHEREAS, the Board recognizes that, as is the case with many
publicly held corporations, the possibility of a Change in Control exists and
that such possibility, and the uncertainty and questions which it may raise
among management, may result in the departure or distraction of management
personnel to the detriment of the Company and its stockholders; and
WHEREAS, the Board has determined that appropriate steps
should be taken to reinforce and encourage the continued attention and
dedication of members of the management of the Company and its subsidiaries
(collectively, "Sierra"), including the Executive, to their assigned duties
without distraction in the face of potentially disturbing circumstances arising
from the possibility of a Change in Control;
NOW, THEREFORE, in consideration of the premises and the
mutual covenants herein contained, the Company and the Executive hereby agree as
follows:
1. Defined Terms. The definitions of capitalized terms
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used in this Agreement are provided in the last Section hereof.
2. Term of Agreement. Subject to the provisions of Section
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12.2 hereof, the term of this Agreement shall commence on the date hereof and
shall continue in effect through December 31, 2004; provided, however, that if a
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Change in Control shall have occurred during the Term, the Term shall expire no
earlier than twenty-four (24) months beyond the month in which such Change in
Control occurred; and further provided, however, that if a Potential Change in
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Control shall have occurred during the Term, the Term shall expire no earlier
than the latter of (a) the date on which such potential Change in Control shall
have been terminated, or (b) 24 months beyond the date on which such potential
Change in Control shall have resulted in a Change of Control.
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3. Company's Covenants Summarized. In order to induce the
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Executive to remain in the employ of Sierra and in consideration of the
Executive's covenants set forth in Section 4 hereof, the Company agrees, under
the conditions described herein, to pay the Executive the Severance Payments and
the other payments and benefits described herein. Except as provided in Section
9.1 hereof, no Severance Payments shall be payable under this Agreement unless
there shall have been (or, under the terms of the second sentence of Section 6.1
hereof, there shall be deemed to have been) a termination of the Executive's
employment with Sierra following a Change in Control or potential Change in
Control and during the Term. This Agreement shall not be construed as creating
an express or implied contract of employment and, except as otherwise agreed in
writing between the Executive and Sierra, the Executive shall not have any right
to be retained in the employ of Sierra. The obligations of the Company hereunder
shall be deemed satisfied to the extent payments are made by Sierra Pacific
Power, Nevada Power, or any affiliate of the Company.
4. The Executive's Covenants. The Executive agrees that,
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subject to the terms and conditions of this Agreement, in the event of a
Potential Change in Control during the Term, the Executive will remain in the
employ of the Company until the earliest of (i) a date which is six (6) months
from the date of such Potential Change of Control, (ii) the date of a Change in
Control, (iii) the date of termination by the Executive of the Executive's
employment for Good Reason or by reason of death, Disability or Retirement, or
(iv) the termination by Sierra of the Executive's employment for any reason.
5. Compensation Other Than Severance Payments.
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5.1 Following a Change in Control or potential Change in
Control and during the Term, during any period that the Executive fails to
perform the Executive's full-time duties with Sierra as a result of incapacity
due to physical or mental illness, the Company shall pay the Executive's full
salary to the Executive at the rate in effect at the commencement of any such
period, together with all compensation and benefits payable to the Executive
under the terms of any compensation or benefit plan, program or arrangement
maintained by Sierra during such period, until the Executive's employment is
terminated by Sierra for Disability.
5.2 If the Executive's employment shall be terminated for any
reason following a Change in Control or potential Change in Control and during
the Term, the Company shall pay the Executive's full salary to the Executive
through the Date of Termination at the rate in effect immediately prior to the
Date of Termination or, if higher, the rate in effect immediately prior to the
first occurrence of an event or circumstance constituting Good Reason, together
with all compensation and benefits payable to the Executive through the Date of
Termination under the terms of Sierra compensation and benefit plans, programs
or arrangements as in effect immediately prior to the Date of Termination or, if
more favorable to the Executive,
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as in effect immediately prior to the first occurrence of an event or
circumstance constituting Good Reason.
5.3 If the Executive's employment shall be terminated for any
reason following a Change in Control or potential Change in Control and during
the Term, the Company shall pay to the Executive the Executive's normal
post-termination compensation and benefits as such payments become due. Such
post-termination compensation and benefits shall be determined under, and paid
in accordance with, Sierra's retirement, insurance and other compensation or
benefit plans, programs and arrangements as in effect immediately prior to the
Date of Termination or, if more favorable to the Executive, as in effect
immediately prior to the occurrence of the first event or circumstance
constituting Good Reason.
6. Severance Payments.
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6.1 Subject to Section 6.2 hereof, if the Executive's
employment is terminated following a Change in Control and during the Term,
other than (A) by Sierra for Cause, (B) by reason of death or Disability, or (C)
by the Executive without Good Reason, then Sierra shall pay the Executive the
amounts, and provide the Executive the benefits, described in this Section 6.1
("Severance Payments"), in addition to any payments and benefits to which the
Executive is entitled under Section 5 hereof. For purposes of this Agreement,
the Executive's employment shall be deemed to have been terminated following a
Change in Control by Sierra without Cause or by the Executive with Good Reason,
if (i) the Executive's employment is terminated by Sierra without Cause prior to
a Change in Control (whether or not a Change in Control ever occurs) and such
termination was at the request or direction of a Person who has entered into an
agreement with the Company the consummation of which would constitute a Change
in Control, (ii) the Executive terminates his employment for Good Reason prior
to a Change in Control (whether or not a Change in Control ever occurs) and the
circumstance or event which constitutes Good Reason occurs at the request or
direction of such Person, or (iii) the Executive's employment is terminated by
Sierra without Cause or by the Executive for Good Reason and such termination or
the circumstance or event which constitutes Good Reason is otherwise in
connection with or in anticipation of a Change in Control (whether or not a
Change in Control ever occurs). For purposes of any determination regarding the
applicability of the immediately preceding sentence, any position taken by the
Executive shall be presumed to be correct unless the Company establishes to the
Board by clear and convincing evidence that such position is not correct.
(A) In lieu of any further salary payments to the
Executive for periods subsequent to the Date of Termination and in lieu
of any severance benefit otherwise payable to the Executive under or
pursuant to any contract or plan, except for any severance benefits
relating to or resulting from the Supplemental Executive Retirement
Plan, whether as a consequence of a Change in Control or otherwise, the
Company shall pay to the Executive a
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lump sum severance payment, in cash, equal to three times the sum of
(i) the Executive's base salary as in effect immediately prior to the
Date of Termination or, if higher, in effect immediately prior to the
first occurrence of an event or circumstance constituting Good Reason,
and (ii) the target annual incentive award applicable to the Executive
pursuant to any annual bonus or incentive plan maintained by Sierra in
respect of the fiscal year ending immediately prior to the fiscal year
in which occurs the Date of Termination or, if higher, immediately
prior to the fiscal year in which occurs the first event or
circumstance constituting Good Reason.
(B) For the thirty-six (36) month period immediately
following the Date of Termination, the Company shall arrange to provide
the Executive and his dependents life, disability, accident and health
insurance benefits substantially similar to those provided to the
Executive and his dependents immediately prior to the Date of
Termination or, if more favorable to the Executive, those provided to
the Executive and his dependents immediately prior to the first
occurrence of an event or circumstance constituting Good Reason, at no
greater cost to the Executive than the cost to the Executive
immediately prior to such date or occurrence; provided, however, that,
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unless the Executive consents to a different method (after taking into
account the effect of such method on the calculation of "parachute
payments" pursuant to Section 6.2 hereof), such health insurance
benefits shall be provided through a third-party insurer. Benefits
otherwise receivable by the Executive pursuant to this Section 6.1(B)
shall be reduced to the extent benefits of the same type are received
by or made available to the Executive during the thirty-six (36) month
period following the Executive's termination of employment (and any
such benefits received by or made available to the Executive shall be
reported to the Company by the Executive); provided, however, that the
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Company shall reimburse the Executive for the excess, if any, of the
cost of such benefits to the Executive over such cost immediately prior
to the Date of Termination or, if more favorable to the Executive, the
first occurrence of an event or circumstance constituting Good Reason.
If the Severance Payments shall be decreased pursuant to Section 6.2
hereof, and the Section 6.1(B) benefits which remain payable after the
application of Section 6.2 hereof are thereafter reduced pursuant to
the immediately preceding sentence, the Company shall, no later than
five (5) business days following such reduction, pay to the Executive
the least of (a) the amount of the decrease made in the Severance
Payments pursuant to Section 6.2 hereof, (b) the amount of the
subsequent reduction in these Section 6.1(B) benefits, or (c) the
maximum amount which can be paid to the Executive without being, or
causing any other payment to be, nondeductible by reason of Section
280G of the Code.
(C) Notwithstanding any provision of any annual or
long-term incentive plan to the contrary, the Company shall pay to the
Executive a lump sum amount, in cash, equal to the sum of (i) any
unpaid incentive
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compensation which has been allocated or awarded to the Executive fora
completed fiscal year or other measuring period preceding the Date of
Termination under any such plan and which, as of the Date of
Termination, is contingent only upon the continued employment of the
Executive to a subsequent date, and (ii) a pro rata portion to the Date
of Termination of the aggregate value of all contingent incentive
compensation awards to the Executive for all then uncompleted periods
under any such plan, calculated as to each such award by multiplying
the award that the Executive would have earned on the last day of the
performance award period, assuming the achievement, at the target level
of the individual and corporate performance goals established with
respect to such award, by the fraction obtained by dividing the number
of full months and any fractional portion of a month during such
performance award period through the Date of Termination by the total
number of months contained in such performance award period.
(D) In addition to the retirement benefits to which
the Executive is entitled under each Pension Plan or any successor plan
thereto, the Company shall pay the Executive a lump sum amount, in
cash, equal to the excess of (i) the actuarial equivalent of the
aggregate retirement pension (taking into account any early retirement
subsidies associated therewith and determined as a straight life
annuity commencing at the date (but in no event earlier than the third
anniversary of the Date of Termination) as of which the actuarial
equivalent of such annuity is greatest) which the Executive would have
accrued under the terms of all Pension Plans (without regard to any
amendment to any Pension Plan made subsequent to a Change in Control
and on or prior to the Date of Termination, which amendment adversely
affects in any manner the computation of retirement benefits
thereunder), determined as if the Executive were fully vested
thereunder and had accumulated (after the Date of Termination)
thirty-six (36) additional months of service credit thereunder and had
been credited under each Pension Plan during such period with
compensation equal to the Executive's compensation (as defined in such
Pension Plan) during the twelve (12) months immediately preceding the
Date of Termination or, if higher, during the twelve months immediately
prior to the first occurrence of an event or circumstance constituting
Good Reason, over (ii) the actuarial equivalent of the aggregate
retirement pension (taking into account any early retirement subsidies
associated therewith and determined as a straight life annuity
commencing at the date (but in no event earlier than the Date of
Termination) as of which the actuarial equivalent of such annuity is
greatest) which the Executive had accrued pursuant to the provisions of
the Pension Plans as of the Date of Termination. For purposes of this
Section 6.1(D), "actuarial equivalent" shall be determined using the
same assumptions utilized under the Sierra Pacific Power Company
Retirement Plan immediately prior to the Date of Termination. or, if
more favorable to the Executive, immediately prior to the first
occurrence of an event or circumstance constituting Good Reason.
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(E) If the Executive would have become entitled to
benefits under Sierra's post-retirement health care or life insurance
plans, as in effect immediately prior to the Date of Termination or, if
more favorable to the Executive, as in effect immediately prior to the
first occurrence of an event or circumstance constituting Good Reason,
had the Executive's employment terminated at any time during the period
of thirty-six (36) months after the Date of Termination, the Company
shall provide such post-retirement health care or life insurance
benefits to the Executive and the Executive's dependents commencing on
the later of (i) the date on which such coverage would have first
become available and (ii) the date on which benefits described in
subsection (B) of this Section 6.1 terminate.
6.2 (A) Anything in this Agreement to the contrary
notwithstanding, if it is determined (as hereafter provided) that any payment or
distribution by the Company, any person whose actions result in a Change in
Control or any affiliate of the Company or such person, to or for the benefit of
the Executive, whether paid or payable or distributed or distributable 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 an 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).
(B) Subject to the provisions of this Section,
all determinations required to be made under this Section, including whether
an 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
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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 Code (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 Payments that will not
have been made by the Company should 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 this
Section, and the Executive thereafter is required to make a payment of any
Excise Tax, the Executive will direct the Accounting 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.
(C) 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 otherwise cooperate with the
Accounting Firm in connection with the preparation and issuance of the
determinations and calculations contemplated by this Section.
(D) 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.
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(E) The fees and expenses of the Accounting Firm
for its services in connection with the determinations and calculations
contemplated by this section 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 therefore and reasonable
evidence of his payment thereof.
(F) 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;
(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 with respect of the subject matter and reasonably
selected by the Company;
(c) cooperate with the Company in good faith in
order effectively to 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, the Company will control all proceedings taken in connection with the
contest of any claim contemplated by this Section and, at its sole option, may
pursue or forego any and all administrative appeals, proceedings, hearings, and
conferences with the taxing
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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 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 and 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.
(G) If, after the receipt by the Executive of an
amount advanced by the Company pursuant to this Section, the Executive receives
any refund with respect to such claim, the Executive will (subject to the
Company's complying with the requirements of this Section) promptly pay to the
Company the amount of such refund (together with any interest paid or credited
thereon after any taxes applicable theret0). If, after the receipt by the
Executive of an amount advanced by the Company pursuant to this Section, 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 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 the Gross-Up Payment required to be paid by
the Company to the Executive pursuant to this Section.
6.3 This section intentionally left blank.
6.4 The Company also shall pay to the Executive all legal fees
and expenses incurred by the Executive in disputing in good faith any issue
hereunder relating to the termination of the Executive's employment, in seeking
in good faith to obtain or enforce any benefit or right provided by this
Agreement or in connection with any tax audit or proceeding to the extent
attributable to the application of Section 4999 of the Code to any payment or
benefit provided hereunder. Such payments shall be made within five (5) business
days after delivery of the Executive's written requests for payment accompanied
with such evidence of fees and expenses incurred as the Company reasonably may
require.
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6.5 Notwithstanding any other provision of this agreement, if
the executive is entitled to and claims benefits under or pursuant to any other
change in control agreement entered into between Company or Sierra and the
executive, or any terms or conditions thereunder, the executive shall not be
entitled to any of the severance benefits or any other benefits under this
agreement or terms or conditions of this agreement.
7. Termination Procedures and Compensation During Dispute.
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7.1 Notice of Termination. After a Change in Control or
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potential Change in Control and during the Term, any purported termination of
the Executive's employment (other than by reason of death) shall be communicated
by written Notice of Termination from one party hereto to the other party hereto
in accordance with Section 10 hereof. For purposes of this Agreement, a "Notice
of Termination" shall mean a notice which shall indicate the specific
termination provision in this Agreement relied upon and shall set forth in
reasonable detail the facts and circumstances claimed to provide a basis for
termination of the Executive's employment under the provision so indicated.
Further, a Notice of Termination for Cause is required to include a copy of a
resolution duly adopted by the affirmative vote of not less than three-quarters
(3/4) of the entire membership of the Board at a meeting of the Board which was
called and held for the purpose of considering such termination (after
reasonable notice to the Executive and an opportunity for the Executive,
together with the Executive's counsel, to be heard before the Board) finding
that, in the good faith opinion of the Board, the Executive was guilty of
conduct set forth in clause (i) or (ii) of the definition of Cause herein, and
specifying the particulars thereof in detail.
7.2 Date of Termination. "Date of Termination," with respect
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to any purported termination of the Executive's employment after a Change in
Control or potential Change in Control and during the Term, shall mean (i) if
the Executive's employment is terminated for Disability, thirty (30) days after
Notice of Termination is given (provided that the Executive shall not have
returned to the full-time performance of the Executive's duties during such
thirty (30) day period), and (ii) if the Executive's employment is terminated
for any other reason, the date specified in the Notice of Termination (which, in
the case of a termination by Sierra, shall not be less than thirty (30) days
(except in the case of a termination for Cause) and, in the case of a
termination by the Executive, shall not be less than fifteen (15) days nor more
than sixty (60) days, respectively, from the date such Notice of Termination is
given).
7.3 Dispute Concerning Termination. If within fifteen (15)
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days after any Notice of Termination is given, or, if later, prior to the Date
of Termination (as determined without regard to this Section 7.3), the party
receiving such Notice of Termination notifies the other party that a dispute
exists concerning the termination, the Date of Termination shall be extended
until the earlier of (i) the date on which
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the Term ends or (ii) the date on which the dispute is finally resolved, either
by mutual written agreement of the parties or by a final judgment, order or
decree of an arbitrator or a court of competent jurisdiction (which is not
appealable or with respect to which the time for appeal therefrom has expired
and no appeal has been perfected); provided, however, that the Date of
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Termination shall be extended by a notice of dispute given by the Executive only
if such notice is given in good faith and the Executive pursues the resolution
of such dispute with reasonable diligence.
7.4 Compensation During Dispute. If a purported termination
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occurs following a Change in Control or potential Change in Control and during
the Term and the Date of Termination is extended in accordance with Section 7.3
hereof, the Company shall continue to pay the Executive the full compensation in
effect when the notice giving rise to the dispute was given (including, but not
limited to, salary) and continue the Executive as a participant in all
compensation, benefit and insurance plans in which the Executive was
participating when the notice giving rise to the dispute was given, until the
Date of Termination, as determined in accordance with Section 7.3 hereof.
Amounts paid under this Section 7.4 are in addition to all other amounts due
under this Agreement (other than those due under Section 5.2 hereof) and shall
not be offset against or reduce any other amounts due under this Agreement.
8. No Mitigation. The Company agrees that, if the Executive's
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employment with Sierra terminates during the Term, the Executive is not required
to seek other employment or to attempt in any way to reduce any amounts payable
to the Executive by the Company pursuant to Section 6 hereof or Section 7.4
hereof. Further, the amount of any payment or benefit provided for in this
Agreement (other than Section 6.1(B) hereof) shall not be reduced by any
compensation earned by the Executive as the result of employment by another
employer, by retirement benefits, by offset against any amount claimed to be
owed by the Executive to the Company, or otherwise.
9. Successors; Binding Agreement.
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9.1 In addition to any obligations imposed by law upon any
successor to the Company, the Company will 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 expressly
assume 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. Failure of the Company to obtain such assumption and agreement
prior to the effectiveness of any such succession shall be a breach of this
Agreement and shall entitle the Executive to compensation from the Company in
the same amount and on the same terms as the Executive would be entitled to
hereunder if the Executive were to terminate the Executive's employment for Good
Reason after a Change in Control, except that, for purposes of implementing the
foregoing, the date on which any such succession becomes effective shall be
deemed the Date of Termination.
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9.2 This Agreement shall inure to the benefit of and be
enforceable by the Executive's personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees and legatees. If the
Executive shall die while any amount would still be payable to the Executive
hereunder (other than amounts which, by their terms, terminate upon the death of
the Executive) if the Executive had continued to live, all such amounts, unless
otherwise provided herein, shall be paid in accordance with the terms of this
Agreement to the executors, personal representatives or administrators of the
Executive's estate.
10. Notices. For the purpose of this Agreement, notices and
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all other communications provided for in the Agreement shall be in writing and
shall be deemed to have been duly given when delivered or mailed by United
States registered mail, return receipt requested, postage prepaid, addressed, if
to the Executive, to the address inserted below the Executive's signature on the
final page hereof and, if to the Company, to the address set forth below, or to
such other address as either party may have furnished to the other in writing in
accordance herewith, except that notice of change of address shall be effective
only upon actual receipt:
To the Company:
Sierra Power Resources
0000 Xxxx Xxxx
Xxxx, Xxxxxx 00000-0000
Attention: General Counsel
11. Miscellaneous. No provision of this Agreement may be
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modified, waived or discharged unless such waiver, modification or discharge is
agreed to in writing and signed by the Executive and such officer as may be
specifically designated by the Board. No waiver by either party hereto at any
time of any breach by the other party hereto of, or of any lack of compliance
with, any condition or provision of this Agreement to be performed by such other
party shall be deemed a waiver of similar or dissimilar provisions or conditions
at the same or at any prior or subsequent time. This Agreement supersedes any
other agreements or representations, oral or otherwise, express or implied, with
respect to the subject matter hereof which have been made by either party;
provided, however, that this Agreement shall supersede any agreement setting
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forth the terms and conditions of the Executive's employment with Sierra only in
the event that the Executive's employment with Sierra is terminated on or
following a Change in Control or potential Change in Control, by Sierra other
than for Cause or by the Executive other than for Good Reason. The validity,
interpretation, construction and performance of this Agreement shall be governed
by the laws of the State of Nevada. All references to sections of the Exchange
Act or the Code shall be deemed also to refer to any successor provisions to
such sections. Any payments provided for hereunder shall be paid net of any
applicable withholding required
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under federal, state or local law and any additional withholding to which the
Executive has agreed. The obligations of the Company and the Executive under
this Agreement which by their nature may require either partial or total
performance after the expiration of the Term (including, without limitation,
those under Sections 6 and 7 hereof) shall survive such expiration.
12. Validity.
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12.1 The invalidity or unenforceability of any provision of
this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement, which shall remain in full force and effect.
13. Counterparts. This Agreement may be executed in several
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counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
14. Settlement of Dispute; Arbitration.
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14.1 All claims by the Executive for benefits under this
Agreement shall be directed to and determined by the Board and shall be in
writing. Any denial by the Board of a claim for benefits under this Agreement
shall be delivered to the Executive in writing and shall set forth the specific
reasons for the denial and the specific provisions of this Agreement relied
upon. The Board shall afford a reasonable opportunity to the Executive for a
review of the decision denying a claim and shall further allow the Executive to
appeal to the Board a decision of the Board within sixty (60) days after
notification by the Board that the Executive's claim has been denied.
14.2 Any further dispute or controversy arising under or in
connection with this Agreement shall be settled exclusively by arbitration in
Reno, Nevada in accordance with the rules of the American Arbitration
Association then in effect; provided, however, that the evidentiary standards
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set forth in this Agreement shall apply. Judgment may be entered on the
arbitrator's award in any court having jurisdiction. Notwithstanding any
provision of this Agreement to the contrary, the Executive shall be entitled to
seek specific performance of the Executive's right to be paid until the Date of
Termination during the pendency of any dispute or controversy arising under or
in connection with this Agreement.
15. Definitions. For purposes of this Agreement, the
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following terms shall have the meanings inidicated below:
(A) "Affiliate" shall have the meaning set forth in Rule 12b-2
promulgated under Section 12 of the Exchange Act.
(B) "Auditor" shall have the meaning set forth in Section 6.2
hereof.
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(C) "Base Amount" shall have the meaning set forth in Section
280G(b)(3) of the Code.
(D) "Beneficial Owner" shall have the meaning set forth in
Rule 13d-3 under the Exchange Act.
(E) "Board" shall mean the Board of Directors of the Company.
(F) "Cause" for termination by Sierra of the Executive's
employment shall mean (i) the willful and continued failure by the Executive to
substantially perform the Executive's duties with Sierra (other than any such
failure resulting from the Executive's incapacity due to physical or mental
illness or any such actual or anticipated failure after the issuance of a Notice
of Termination for Good Reason by the Executive pursuant to Section 7.1 hereof)
after a written demand for substantial performance is delivered to the Executive
by the Board, which demand specifically identifies the manner in which the Board
believes that the Executive has not substantially performed the Executive's
duties, or (ii) the willful engaging by the Executive in conduct which is
demonstrably and materially injurious to Sierra, monetarily or otherwise. For
purposes of clauses (i) and (ii) of this definition, (x) no act, or failure to
act, on the Executive's part shall be deemed "willful" unless done, or omitted
to be done, by the Executive not in good faith and without reasonable belief
that the Executive's act, or failure to act, was in the best interest of Sierra
and (y) in the event of a dispute concerning the application of this provision,
no claim by Sierra that Cause exists shall be given effect unless Sierra
establishes to the Board by clear and convincing evidence that Cause exists.
(G) A "Change in Control" shall be deemed to have occurred if
the event set forth in any one of the following paragraphs shall have occurred:
(I) any Person is or becomes the Beneficial Owner,
directly or indirectly, of securities of the Company (not
including in the securities beneficially owned by such Person
any securities acquired directly from the Company or its
affiliates) representing 30% or more of the combined voting
power of the Company's then outstanding securities, excluding
any Person who becomes such a Beneficial Owner in connection
with a transaction described in clause (i) of paragraph (III)
below; 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
the Company) whose appointment or election by the Board or
nomination for election by the Company's stockholders was
approved or
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recommended 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 recommended; or
(III) there is consummated a merger or consolidation
of the Company or any direct or indirect subsidiary of the
Company with any other corporation, other than (i) a merger or
consolidation which would result in the voting securities of
the Company outstanding immediately prior to such merger or
consolidation 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 or
any subsidiary of the Company, at least 66.66% of the combined
voting power of the securities of the Company or such
surviving entity or any parent thereof outstanding immediately
after such merger or consolidation, or (ii) a merger or
consolidation effected to implement a recapitalization of the
Company (or similar transaction) in which no Person is or
becomes the Beneficial Owner, directly or indirectly, of
securities of the Company (not including in the securities
Beneficially Owned by such Person any securities acquired
directly from the Company or its Affiliates other than in
connection with the acquisition by the Company or its
Affiliates of a business) representing 30% or more of the
combined voting power of the Company's then outstanding
securities; or
(IV) the stockholders of the Company approve a plan
of complete liquidation or dissolution of the Company or there
is consummated an agreement for the sale or disposition by the
Company of all or substantially all of the Company's assets,
other than a sale or disposition by the Company of all or
substantially all of the Company's assets to an entity, at
least 66.66% of the combined voting power of the voting
securities of which are owned by stockholders of the Company
in substantially the same proportions as their ownership of
the Company immediately prior to such sale.
Notwithstanding the foregoing, a "Change in Control" shall not be deemed to have
occurred by virtue of the consummation of any transaction or series of
integrated transactions immediately following which the record holders of the
common stock of the Company 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 the Company
immediately following such transaction or series of transactions.
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(H) "Code" shall mean the Internal Revenue Code of 1986, as
amended from time to time.
(I) "Company" shall mean Sierra Pacific Resources and, except
in determining under Section 15(G) hereof whether or not any Change in Control
of the Company has occurred, shall include any successor to its business and/or
assets which assumes and agrees to perform this Agreement by operation of law,
or otherwise.
(J) "Date of Termination" shall have the meaning set forth in
Section 7.2 hereof.
(K) "Disability" shall be deemed the reason for the
termination by Sierra of the Executive's employment, if, as a result of the
Executive's incapacity due to physical or mental illness, the Executive shall
have been absent from the full-time performance of the Executive's duties with
Sierra for a period of six (6) consecutive months, Sierra shall have given the
Executive a Notice of Termination for Disability, and, within thirty (30) days
after such Notice of Termination is given, the Executive shall not have returned
to the full-time performance of the Executive's duties.
(L) "Exchange Act" shall mean the Securities Exchange Act
of 1934, as amended from time to time.
(M) "Executive" shall mean the individual named in the first
paragraph of this Agreement.
(N) "Good Reason" for termination by the Executive of the
Executive's employment shall mean the occurrence (without the Executive's
express written consent) after any Change in Control, or prior to a Change in
Control under the circumstances described in clauses (ii) and (iii) of the
second sentence of Section 6.1 hereof (treating all references in paragraphs (I)
through (VII) below to a "Change in Control" as references to a "Potential
Change in Control"), of any one of the following acts by Sierra, or failures by
Sierra to act, unless, in the case of any act or failure to act described in
paragraphs (I), (IV), (V) or (VI) below, such act or failure to act is corrected
prior to the Date of Termination specified in the Notice of Termination given in
respect thereof:
(I) Removal of Executive as Chief Executive Officer
or Chairman of the Board: the assignment to the Executive of
any duties substantially below the Executive's status as the
most senior executive officer of Sierra or a substantial
adverse reduction in the nature or status of the Executive's
responsibilities from those in effect immediately prior to the
Change in Control other than any such alteration primarily
attributable to the fact that the Company may no longer be a
public company;
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(II) a reduction by Sierra in the Executive's annual
base salary as in effect on the date hereof or as the same may
be increased from time to time except for across-the-board
salary reductions similarly affecting all senior executives of
Sierra and all senior executives of any Person in control of
Sierra;
(III) the failure by Sierra to pay to the Executive
any portion of the Executive's current compensation except
pursuant to an across-the-board compensation deferral
similarly affecting all senior executives of Sierra and all
senior executives of any Person in control of Sierra, or to
pay to the Executive any portion of an installment of deferred
compensation under any deferred compensation program of
Sierra, within thirty (30) days of the date such compensation
is due;
(IV) the failure by Sierra to continue in effect any
compensation plan in which the Executive participates
immediately prior to the Change in Control which is material
to the Executive's total compensation, including but not
limited to the Company's Officer and Senior Managers Annual
Incentive Plan, Executive Long-Term Incentive Plan, Long-Term
Performance Share Program and Stock Option Plan or any
substitute plans adopted prior to the Change in Control,
unless an equitable arrangement (embodied in an ongoing
substitute or alternative plan) has been made with respect to
such plan, or the failure by Sierra to continue the
Executive's participation therein (or in such substitute or
alternative plan) on a basis not materially less favorable,
both in terms of the amount or timing of payment of benefits
provided and the level of the Executive's participation
relative to other participants, as existed immediately prior
to the Change in Control;
(V) the failure by Sierra to continue to provide the
Executive with benefits substantially similar to those enjoyed
by the Executive under any of Sierra's pension, savings, life
insurance, medical, health and accident, or disability plans
in which the Executive was participating immediately prior to
the Change in Control (except for across the board changes
similarly affecting all senior executives of Sierra and all
senior executives of any Person in control of Sierra), the
taking of any other action by Sierra which would directly or
indirectly materially reduce any of such benefits or deprive
the Executive of any material fringe benefit enjoyed by the
Executive at the time of the Change in Control, or the failure
by Sierra to provide the Executive with substantially the same
number of paid vacation days to which the Executive is
entitled on the basis of years of service with Sierra in
accordance with Sierra's normal vacation policy in effect at
the time of the Change in Control; or
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(VI) any purported termination of the Executive's
employment which is not effected pursuant to a Notice of
Termination satisfying the requirements of Section 7.1 hereof;
for purposes of this Agreement, no such purported termination
shall be effective.
The Executive's right to terminate the Executive's employment
for Good Reason shall not be affected by the Executive's incapacity due to
physical or mental illness. The Executive's continued employment shall not
constitute consent to, or a waiver of rights with respect to, any act or failure
to act constituting Good Reason hereunder.
For purposes of any determination regarding the existence of
Good Reason, any claim by the Executive that Good Reason exists shall be
presumed to be correct unless the Company establishes to the Board by clear and
convincing evidence that Good Reason does not exist.
(O) "Notice of Termination" shall have the meaning set forth
in Section 7.1 hereof.
(P) "Pension Plan" shall mean any tax-qualified, supplemental
or excess benefit pension plan maintained by Sierra and any other plan or
agreement entered into between the Executive and Sierra which is designed to
provide the Executive with supplemental or additional retirement benefits.
(Q) "Person" shall have 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 (i) the Company or any of its
subsidiaries, (ii) a trustee or other fiduciary holding securities under an
employee benefit plan of the Company or any of its Affiliates, (iii) an
underwriter temporarily holding securities pursuant to an offering of such
securities, or (iv) a corporation owned, directly or indirectly, by the
stockholders of the Company in substantially the same proportions as their
ownership of stock of the Company.
(R) "Potential Change in Control" shall be deemed to have
occurred if the event set forth in any one of the following paragraphs shall
have occurred:
(I) the Company enters into an agreement, the
consummation of which would result in the occurrence of a
Change in Control;
(II) the Company or any Person publicly announces an
intention to take or to consider taking actions which, if
consummated, would constitute a Change in Control;
(III) any Person becomes the Beneficial Owner,
directly or indirectly, of securities of the Company
representing 15% or more of
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either the then outstanding shares of common stock of the
Company or the combined voting power of the Company's then
outstanding securities (not including in the securities
beneficially owned by such Person any securities acquired
directly from the Company or its affiliates); or
(IV) any of the items in R(I) through (III) occurs
which is connected with or arises out of a potential Change in
Control, is caused by, or results from another potential
Change in Control.
(S) "Retirement" shall be deemed the reason for the
termination by the Executive of the Executive's employment if such employment is
terminated in accordance with Sierra's retirement policy, including early
retirement, generally applicable to its salaried employees.
(T) "Severance Payments" shall have the meaning set forth in
Section 6.1 hereof.
(U) "Tax Counsel" shall have the meaning set forth in Section
6.2 hereof.
(V) "Term" shall mean the period of time described in Section
2 hereof (including any extension, continuation or termination described
therein).
(W) "Total Payments" shall mean those payments so described
in Section 6.2 hereof.
Sierra Pacific Resources
By:_______________________________
Name:
Title:
___________________________________
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