AMENDED AND RESTATED CHANGE IN CONTROL AGREEMENT BETWEEN IDACORP, INC. AND [EXECUTIVE]
Exhibit
10.1
AMENDED
AND RESTATED CHANGE IN CONTROL AGREEMENT
BETWEEN
IDACORP, INC.
AND
[EXECUTIVE]
THIS AMENDED
AND RESTATED CHANGE IN CONTROL AGREEMENT (the “Agreement”), is by and between
IDACORP, Inc., an Idaho corporation (the “Corporation”) and ________________ (the
“Executive”) and is effective on the date established pursuant to Section 15 of
this Agreement (the “Effective Date”).
W
I T N E S S E T H:
WHEREAS, the
Executive is a valuable employee of the Corporation or a Subsidiary of the
Corporation, an integral part of its management, and a key participant in the
decision-making process relative to short-term and long-term planning and
policy for the Corporation; and
WHEREAS, the
Corporation wishes to encourage the Executive to continue his career and
services with the Corporation or a Subsidiary, as the case may be, following a
Change in Control; and
WHEREAS, the
Board has determined that it would be in the best interests of the Corporation
and its shareholders to assure continuity in the management of the Corporation’s,
including Subsidiaries’, administration and operations in the event of a Change
in Control by entering into this Agreement with the Executive;
NOW THEREFORE,
it is hereby agreed by and between the parties hereto as follows:
1. Definitions.
a. “Board” shall mean the Board of Directors of the Corporation.
b. “Cause”
shall mean the Executive’s fraud or dishonesty which has resulted or is likely
to result in material economic damage to the Corporation or a Subsidiary of the
Corporation, as determined in good faith by a vote of at least two-thirds of
the non-employee directors of the Corporation at a meeting of the Board at
which the Executive is provided an opportunity to be heard.
c. “Change
in Control” shall mean:
(i) any
person (as such term is defined in Section 3(a)(9) of the Securities Exchange
Act of 1934 (the “1934 Act”) and as used in Section 13(d) of the 1934 Act),
excluding (A) the Corporation or any Subsidiary, (B) a corporation or other
entity owned, directly or indirectly, by the stockholders of the Corporation
immediately prior to the transaction in substantially the same proportions as
their ownership of stock of the Corporation, (C) an employee benefit plan (or
related trust) sponsored or maintained by the Corporation or any Subsidiary or
(D) an underwriter temporarily holding securities pursuant to an offering of
such securities (“Person”)) is the beneficial owner (as defined in Rule 13d-3
under the 1934 Act), directly or indirectly, of 20% or more of the combined
voting power of the then outstanding voting securities eligible to vote
generally in the election of directors of the Corporation; provided, however,
that no Change in Control will be deemed to have occurred as a result of a
change in ownership percentage resulting solely from an acquisition of
securities by the Corporation;
(ii) any
Person has commenced a tender or exchange offer to acquire any stock of the
Corporation (or securities convertible into stock) for cash, securities or any
other consideration provided that, after the closing of the offer with full
shareholder subscription, such Person would be the beneficial owner (as defined
in Rule 13d-3 under the 1934 Act), directly or indirectly, of 20% or more of
the combined voting power of the then outstanding voting securities eligible to
vote generally in the election of directors of the Corporation (calculated as
provided in Paragraph (d) of Rule 13d-3 under the 1934 Act in the case of
rights to acquire stock);
(iii) all
required shareholder approvals have been obtained for a merger, consolidation,
reorganization or share exchange, or sale of all or substantially all of the
assets, of the Corporation or Idaho Power Company (a “Qualifying Transaction”),
unless, immediately following such Qualifying Transaction, all of the following
have occurred: (A) all or substantially all of the beneficial owners of the
Corporation immediately prior to such Qualifying Transaction will beneficially
own in substantially the same proportions, directly or indirectly, more than
50% of the combined voting power of the then outstanding voting securities
entitled to vote generally in the election of directors of the corporation or
other entity resulting from such Qualifying Transaction (including, without
limitation, a corporation or other entity which, as a result of such
transaction, owns the Corporation or all or substantially all of the
Corporation’s assets either directly or through one or more subsidiaries) (as
the case may be, the “Successor Entity”), (B) no Person will be the beneficial
owner (as defined in Rule 13d-3 under the 1934 Act), directly or indirectly, of
20% or more of the combined voting power of the then outstanding voting
securities eligible to vote generally in the election of directors of the Successor
Entity and (C) at least a majority of the members of the board of directors of
the Successor Entity will be Incumbent Directors;
(iv) shareholder
approval of a complete liquidation or dissolution of the Corporation or Idaho
Power Company; or
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(v) within
a 24-month period, individuals who were directors of the Board immediately
before such period (“Incumbent Directors”) cease to constitute at least a
majority of the directors of the Board; provided, however, that any director
who was not a director of the Board at the beginning of such period shall be
deemed to be an Incumbent Director if the election or nomination for election
of such director was approved by the vote of at least two-thirds of the
directors of the Board then still in office (A) who were in office at the
beginning of the 24-month period or (B) whose election or nomination for
election was so approved, in each case, unless such individual was elected or
nominated as a result of an actual or threatened election contest or as a
result of an actual or threatened solicitation of proxies or consents by or on
behalf of any Person other than the Board; or
(vi) consummation
of any transaction described in Section 1(c)(iii) or 1(c)(iv) if such
transaction was not approved by shareholders.
For avoidance of doubt,
transactions for the purpose of dividing Idaho Power Company’s assets into
separate distribution, transmission or generation entities or such other
entities as the Corporation or Idaho Power Company may determine shall not
constitute a Change in Control unless so determined by the Board.
Upon the Board’s determination
that (x) a tender offer that constituted a Change in Control under Section
1(c)(ii) will not result in a Person becoming the beneficial owner (as defined
in Rule 13d-3 under the 1934 Act), directly or indirectly, of 20% or more of
the combined voting power of the then outstanding voting securities eligible to
vote generally in the election of directors of the Corporation or (y) the
Qualifying Transaction described in Section 1(c)(iii) will not be closed or (z)
a complete liquidation or dissolution of the Corporation or Idaho Power Company
that was approved by shareholders, as described in Section 1(c)(iv), will not
occur, a Change in Control shall be deemed not to have occurred from such date
of determination forward, and this Agreement shall continue in effect as if no
Change in Control had occurred except to the extent a Separation from Service
requiring payments under this Agreement occurs prior to such Board determination.
d. “Code”
shall mean the Internal Revenue Code of 1986, as amended.
e. “Compensation”
shall mean the sum of (i) the Executive’s annual base salary at the time of
Separation from Service (or, if greater, at the time of a termination of
employment that does not constitute a Separation from Service) and (ii) the
Executive’s target annual incentive award in the year of the Separation from
Service (or, if greater, at the time of a termination of employment that does
not constitute a Separation from Service) (or, if as of the date of the
Separation from Service (or termination of employment, as the case may be) no
target annual incentive award has yet been determined for the year of the
Separation from Service, the target annual incentive award for the prior year).
f. “Constructive
Discharge” shall mean any of the following:
(i) any
material failure by the Corporation to comply with any of the provisions of
this Agreement;
(ii) the
Corporation or a Subsidiary of the Corporation requiring the Executive to be
based at any office or location more than 50 miles from the location at which
the Executive was based on the day prior to the Change in Control;
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(iii) a
reduction which is more than de minimis in (A) the Executive’s annual rate of
base salary or maximum annual incentive award opportunity, (B) the long-term
incentive compensation the Executive has the opportunity to earn, determined in
the aggregate if multiple long-term incentive opportunities exist or (C) the
combined annual benefit accrual rate under the Corporation’s qualified defined
benefit pension plan and/or the Idaho Power Company Security Plan for Senior
Management Employees, as in effect immediately prior to the Change in Control
(except if such reduction is a part of a reduction for all executive officers);
(iv) the
Corporation’s failure to require a successor entity to assume and agree to
perform the Corporation’s obligations pursuant to Section 9; or
(v) a
reduction which is more than de minimis in the long term disability and life insurance
coverage provided to the Executive under the Corporation’s life insurance and
long term disability plans as in effect immediately prior to the Change in
Control.
No such event described
hereunder shall constitute Constructive Discharge unless the Executive has
given written notice to the Corporation specifying the event constituting such
Constructive Discharge within 90 days of the initial existence of such event
(but in no event later than the Ending Date) and the Corporation has not
remedied such within 30 days of receipt of such notice. The Corporation and
Executive, upon mutual written agreement, may waive any of the foregoing
provisions which would otherwise constitute a Constructive Discharge.
g. “Coverage
Period” shall begin on the Starting Date and end on the Ending Date.
h. “Disability”
shall mean an injury or illness which permanently prevents the Executive from
performing services to the Corporation and which qualifies the Executive for
payments under the Corporation’s long term disability plan, which for purposes
of this Agreement shall be the Idaho Power Company Long Term Disability Plan.
i. “Ending
Date” shall be the date which is 36 full calendar months following the date on
which a Change in Control occurs or if the Change in Control is shareholder
approval pursuant to Section 1(c)(iii) or 1(c)(iv), the date which is 36 months
following the consummation of the transaction subject to such shareholder
approval.
j. “Separation
from Service” shall mean “separation from service,” as that term is used in
Code Section 409A(a)(2)(A)(i).
k. “Starting
Date” shall be the date on which a Change in Control occurs.
l. “Subsidiary”
means any corporation of which more than 50% of the outstanding stock having
ordinary voting power to elect a majority of the board of directors of such
corporation is now or hereafter owned, directly or indirectly, by the
Corporation.
2. Term.
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This Agreement
shall be effective as of the Starting Date and shall continue thereafter until
the 36 month anniversary of the later of (i) such date or (ii) if the Change in
Control causing the Agreement to be effective is shareholder approval pursuant
to Section 1(c)(iii) or 1(c)(iv), the date of the consummation of the
transaction subject to such shareholder approval; provided, however, the
Corporation’s obligations, if any, to provide payments and/or benefits pursuant
to Section 3 of this Agreement and the obligations of the Corporation and the
Executive under Section 5 of this Agreement shall survive the termination of
this Agreement.
3. Severance
Benefits.
a. If
the Executive experiences a Separation from Service effected by the Corporation
(and/or, if the Executive is employed by one or more Subsidiaries, effected by
the Corporation and/or such Subsidiary or Subsidiaries) for any reason other
than Cause (and not due to death or Disability) (for avoidance of doubt,
transfer of employment between or among the Corporation and any of its
Subsidiaries shall not constitute a Separation from Service effected by the Corporation
or a Subsidiary for purposes of this Agreement), or effected by the Executive
in the event of a Constructive Discharge, in either case at any time during the
Coverage Period, then,
(i) the
Corporation shall pay or cause to be paid to the Executive (or if the Executive
dies after Separation from Service but before receiving all payments to which
he has become entitled hereunder, to the estate of the Executive) the following
amounts:
(A) accrued
but unpaid salary and accrued but unused vacation and sick time in accordance
with the Corporation’s or a Subsidiary’s, as the case may be, Flexible Time Off
or similar program, as may be amended from time to time, with such payment to
be made within five business days after such Separation from Service; and
(B) subject to
Section 17, a lump sum cash amount equal to two and one-half times the
Executive’s Compensation (the “Severance Payment”), with such payment to be
made on the first business day that is 60 days after such Separation from
Service, subject to the provisions of Section 19 hereof; and
(ii) subject
to Section 17, the Executive shall be entitled to the following additional
severance benefits:
(A)
notwithstanding anything in any other award notice or agreement providing
otherwise, as applicable, (1) all of the Executive’s outstanding stock options
and stock appreciation rights shall become vested and exercisable as of the
date Severance Payments are paid; (2) all of the Executive’s outstanding shares
of restricted stock and restricted stock units shall become vested in full (at
target levels for any performance-based restricted stock or restricted stock
units) as of the date Severance Payments are paid and shall be paid on the date
the Severance Payments are paid; and (3) the target payout opportunity under
all of the Executive’s outstanding performance units or performance shares (or
other similar awards with performance-based vesting) shall become vested at
target levels as of the date Severance Payments are paid and shall be paid on
the date the Severance Payments are paid;
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(B)
outplacement services commencing within 12 months of the date of the Separation
from Service and extending for a period of not more than 12 months, the scope
and provider of which shall be selected by the Executive in his sole discretion
(but at a total cost to the Corporation of not more than $12,000); and
(C) continued
coverage for Executive and, as applicable, the Executive’s covered dependents
under the Corporation’s group health plans and other welfare benefit plans
(within the meaning of Section 3(1) of the Employee Retirement Income Security
Act of 1974, as amended) to the extent the Executive elects to receive such
coverage and pays a monthly premium equal to the COBRA premium for such group
health coverage and the full monthly cost for such other welfare benefits (the “Elected
Continuation Coverage”). Any such Elected Continuation Coverage shall be
provided, to the extent the Company is able to provide it or to arrange for the
provision of such benefits from another provider, on the same basis (excluding
premiums) as is provided to the Corporation’s actively employed executives and
their dependents, as applicable, until the earlier of (i) twenty-four (24)
months after the Executive’s Separation from Service or (ii) the date the
Executive is first eligible for comparable coverage with a subsequent
employer. As a separate payment under this Agreement, for each month such
Elected Continuation Coverage continues under this Section 3(a)(ii)(C), the
Corporation shall pay to the Executive a monthly reimbursement payment so that,
after withholding of all applicable taxes on such reimbursement payment, the
Executive retains an amount equal to the excess of the COBRA premium and the
full monthly cost for such Elected Continuation Coverage over the active
employee cost for such coverage.
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b. (i)
If Independent Tax Counsel (as that term is defined below) determines
that the aggregate payments and benefits provided or to be provided to the
Executive pursuant to this Agreement, and any other payments and benefits
provided or to be provided to the Executive from the Corporation or any of its
Subsidiaries or other affiliates or any successors thereto constitute “parachute
payments” as defined in Section 280G of the Code (or any successor provision
thereto) (“Parachute Payments”) that would be subject to the excise tax imposed
by Section 4999 of the Code (the “Excise Tax”), then, except as otherwise
provided in the next sentence, such Parachute Payments shall be reduced to the
extent the Independent Tax Counsel shall determine is necessary (but not below
zero) so that no portion thereof shall be subject to the Excise Tax. If
Independent Tax Counsel determines that the Executive would receive in the
aggregate greater payments and benefits on an after tax basis if the Parachute
Payments were not reduced pursuant to this Section 3(b), then no such reduction
shall be made. The determination of which payments or benefits shall be
reduced to avoid the Excise Tax shall be made by the Independent Tax Counsel,
provided that the Independent Tax Counsel shall reduce or eliminate, as the
case may be, payments or benefits in the order that it determines will produce
the required deduction in total Parachute Payments with the least reduction in economic
value to the Executive of such payments. The determination of the Independent
Tax Counsel under this subsection (i) shall be final and binding on all parties
hereto. For purposes of this Section 3(b), “Independent Tax Counsel” shall
mean a lawyer, a certified public accountant with a nationally recognized
accounting firm, or a compensation consultant with a nationally recognized
actuarial and benefits consulting firm with expertise in the area of executive
compensation tax law, who shall be selected by the Corporation and shall be
acceptable to the Executive (the Executive’s acceptance not to be unreasonably
withheld), and whose fees and disbursements shall be paid by the Corporation.
(ii) Notwithstanding
anything herein to the contrary, this Section 3(b) shall be interpreted (and,
if determined by the Corporation to be necessary, reformed) to the extent
necessary to fully comply with Section 409A of the Code; provided that the
Corporation agrees to maintain, to the maximum extent practicable, the original
intent and economic benefit to the Executive of the applicable provision
without violating the provisions of Code Section 409A.
c. In
the event of any Separation from Service described in Section 3(a), the
Executive shall be under no obligation to seek other employment, and there
shall be no offset against amounts due the Executive under this Agreement on
account of any remuneration attributable to any subsequent employment;
provided, however, to the extent the Executive receives medical and health
benefits from a subsequent employer, medical and health benefits provided
pursuant to Section 3(a)(ii)(C) shall be secondary to those received from the
subsequent employer.
d. It
is intended that the payments and benefits provided under this Agreement are in
lieu of, and not in addition to, severance payments and benefits provided under
any severance, change in control or similar plan or policy of the Corporation
or a Subsidiary or under any other severance, change in control or similar
agreements with the Corporation or any Subsidiary, whether written or oral.
4. Nature
of Obligation.
The
Corporation shall not be required to establish a special or separate fund or
other segregation of assets to assure payments under this Agreement, and, if
the Corporation shall make any investments to aid it in meeting its obligations
hereunder, the Executive shall have no right, title or interest in or to any
such investments except as may otherwise be expressly provided in a separate
written instrument relating to such investments. Nothing contained in this
Agreement, and no action taken pursuant to its provisions, shall create or be
construed to create a trust of any kind or a fiduciary relationship between the
Corporation and the Executive or any other person. To the extent that any
person acquires a right to receive payments under this Agreement such right
shall be no greater than the right of an unsecured creditor.
5. Full
Settlement; Litigation Expenses; Arbitration.
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a. Except
as provided below, the Corporation’s obligation to make or cause to be made the
payments provided for in this Agreement and otherwise to perform its
obligations hereunder shall not be affected by any set-off, counterclaim,
recoupment, defense or other claim, right or action which the Corporation or a
Subsidiary may have against the Executive or others. The Corporation agrees to
pay, upon written demand therefor by the Executive, all legal fees and expenses
the Executive reasonably incurs during his or her lifetime as a result of any
dispute or contest (regardless of the outcome thereof) by or with the
Corporation or others regarding the validity or enforceability of, or liability
under, any provision of this Agreement, plus in each case, interest at the
applicable Federal rate provided for in Section 7872(f)(2) of the Code. Notwithstanding
the foregoing, the Executive agrees to repay to the Corporation any such fees
and expenses reimbursed by the Corporation if and to the extent that the
Corporation or such others obtains a judgment or determination that the
Executive’s claim was frivolous or was without merit from the arbitrator or a
court of competent jurisdiction from which no appeal may be taken, whether
because the time to do so has expired or otherwise. In any such action brought
by the Executive for damages or to enforce any provisions of this Agreement, he
shall be entitled to seek both legal and equitable relief and remedies,
including, without limitation, specific performance of the Corporation’s
obligations hereunder, in his sole discretion.
b. In
the event of any dispute or difference between the Corporation and the
Executive with respect to the subject matter of this Agreement and the
enforcement of rights hereunder, either the Executive or the Corporation may,
by written notice to the other, require such dispute or difference to be
submitted to arbitration. The arbitrator or arbitrators shall be selected by
agreement of the parties or, if they cannot agree on an arbitrator or
arbitrators within 30 days after the Executive has notified the Corporation of
his desire to have the question settled by arbitration, then the arbitrator or
arbitrators shall be selected by the American Arbitration Association (the “AAA”)
upon the application of the Executive. The determination reached or award
rendered in such arbitration shall be final and binding on both parties without
any right of appeal or further dispute, subject to the applicable state or
federal laws relating to arbitration determinations or awards. Enforcement of
an arbitration award by such arbitrator may be sought in any court of competent
jurisdiction. The arbitrators shall not be bound by judicial formalities and
may abstain from following the strict rules of evidence and shall interpret
this Agreement as an honorable engagement and not merely as a legal obligation.
Unless otherwise agreed by the parties, any such arbitration shall take place
in Boise, Idaho, and shall be conducted in accordance with the Rules of the
AAA. The Executive’s expenses for such proceeding shall be paid, or repaid to
the Corporation as the case may be, as provided in subsection (a) of this
Section 5.
6. Tax
Withholding.
The
Corporation may withhold from any payments made under this Agreement all
federal, state or other taxes as shall be required pursuant to any law or
governmental regulation or ruling.
7. Entire
Understanding.
This Agreement
contains the entire understanding between the Corporation and the Executive
with respect to the subject matter hereof and supersedes any prior severance,
change in control or similar agreement between the Corporation and the
Executive (including, without limitation, the Prior Agreement by and between
the Corporation and the Executive; provided, however, that, except as otherwise
provided in this Section 7 and in Sections 3(b) and 3(d), this Agreement shall
not affect or operate to reduce any benefit or compensation inuring to the
Executive of any kind elsewhere provided.
8. Severability.
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If, for any
reason, any one or more of the provisions or part of a provision contained in
this Agreement shall be held to be invalid, illegal or unenforceable in any
respect, such invalidity, illegality or unenforceability shall not affect any
other provision or part of a provision of this Agreement not held so invalid,
illegal or unenforceable, and each other provision or part of a provision shall
to the full extent consistent with law continue in full force and effect.
9. Consolidation,
Merger, or Sale of Assets.
If the
Corporation consolidates or merges into or with, or transfers all or
substantially all of its assets to, another entity the term “Corporation” as
used herein shall mean such other entity and this Agreement shall continue in
full force and effect. In the case of any transaction in which a successor
would not by the foregoing provision or by operation of law be bound by this
Agreement, the Corporation shall require such successor expressly and
unconditionally to assume and agree to perform the Corporation’s obligations
under this Agreement, in the same manner and to the same extent that the
Corporation would be required to perform if no such succession had taken place.
10. Notices.
All notices,
requests, demands and other communications required or permitted hereunder
shall be given in writing and shall be deemed to have been duly given if
delivered or mailed, postage prepaid, first class as follows:
to the
Corporation:
IDACORP, Inc.
Attention: General Counsel
X.X. Xxx 00
Xxxxx, Xxxxx 00000
to the
Executive:
At the address
(or to the facsimile number) last shown on the records of the Corporation.
or to such other address as
either party shall have previously specified in writing to the other.
11. No
Attachment.
Except as
required by law, no right by the Executive or his estate to receive payments
under this Agreement shall be subject to anticipation, commutation, alienation,
sale, assignment, encumbrance, charge, pledge or hypothecation or to execution,
attachment, levy or similar process or assignment by operation of law, and any
attempt, voluntary or involuntary, to effect any such action shall be null,
void and of no effect.
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12. Binding
Agreement.
This Agreement
shall be binding upon, and shall inure to the benefit of, the Executive and the
Corporation and their respective permitted successors and assigns.
13. Modification
and Waiver.
Prior to the
date of a Change in Control or, if earlier, the date of a public announcement
of a transaction or event which if consummated would be a Change in Control (“Pre-Change
in Control Event”), this Agreement may be terminated, modified or amended by
action of a majority of the members of the Board. After a Change in Control or
Pre-Change in Control Event, this Agreement may not be terminated, modified or
amended except by an instrument in writing signed by the parties hereto. No
term or condition of this Agreement shall be deemed to have been waived, nor
shall there be any estoppel against the enforcement of any provision of this
Agreement, except by written instrument signed by the party charged with such
waiver or estoppel. No such written waiver shall be deemed a continuing waiver
unless specifically stated therein, and each such waiver shall operate only as
to the specific term or condition waived and shall not constitute a waiver of
such term or condition for the future or as to any act other than that
specifically waived.
14. Headings
of No Effect.
The section
headings contained in this Agreement are included solely for convenience of
reference and shall not in any way affect the meaning or interpretation of any
of the provisions of this Agreement.
15. Effective
Date and Executive Acknowledgments.
This Agreement
shall become effective on the Starting Date. The Executive acknowledges that
he has read and understands the provisions of this Agreement. The Executive
further acknowledges that he has been given an opportunity for his legal
counsel to review this Agreement and that the provisions of this Agreement are
reasonable and that he has received a copy of this Agreement.
16. Not
Compensation for Other Plans.
Except for
amounts paid pursuant to Section 3(a)(i)(A) that are considered compensation,
earnings or wages for purposes of any employee benefit plan of the Corporation
or its Subsidiaries, it is understood by all parties hereto that amounts paid
and benefits provided hereunder are not to be considered compensation, earnings
or wages for purpose of any employee benefit plan of the Corporation or its
Subsidiaries, including, but not limited to, the qualified retirement plan or
the Idaho Power Company Security Plan.
17. Release.
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Notwithstanding
any provision herein to the contrary, if (and only if), within five days
following the date of the Executive’s Separation from Service, the Corporation
provides the Executive a release of the Corporation, its Subsidiaries and other
affiliates and related parties (in such form as the Corporation may reasonably
determine) of all claims against the Corporation, its Subsidiaries and other
affiliates and related parties relating to the Executive’s service and
separation therefrom, the Corporation shall not have any obligation to pay (or
cause to be paid) any amount or provide any benefit under Section 3 of this
Agreement (other than those amounts provided for in Section 3(a)(i)(A) unless
the Executive executes such release and any revocation period applicable to
such release has expired before the sixtieth day following the date of the
Executive’s Separation from Service. If the release has not been executed by
the Executive and has not become irrevocable by the applicable deadline
provided in the prior sentence, any amounts under Section 3
of this Agreement (other than those amounts provided for in Section 3(a)(i)(A))
shall be forfeited.
18. Governing
Law.
To the extent
not preempted by Federal law, this Agreement and its validity, interpretation,
performance, and enforcement shall be governed by the laws of Idaho, without
regard to conflicts of law provisions.
19. Code
Section 409A.
a. To
the extent applicable, this Agreement is intended to comply with the
requirements of Section 409A of the Code and any regulations and guidance
issued thereunder (“Section 409A”) and shall be interpreted accordingly.
b. To
the extent applicable, it is intended that all payments and benefits provided
pursuant to this Agreement upon or following a Separation from Service qualify
as short-term deferrals under Treasury Regulation Section 1.409A-1(b)(4) to the
maximum extent possible. Any installment payments or reimbursements under this
Agreement are to be treated as a series of separate payments for purposes of
Section 409A. Notwithstanding any provision to the contrary in this Agreement,
if it is determined that any amounts to be provided
pursuant to this Agreement constitute deferred compensation for purposes of
Section 409A (“Deferred Compensation Payments”) and if the Executive is
deemed to be a “Specified Employee” (as that term is used in Code Section
409A(a)(2)(B)) on the date of the Executive’s Separation from Service, as
determined under the Corporation’s policy for determining specified employees,
any such Deferred Compensation Payments that are deemed payable due to a
Separation from Service for purposes of Section 409A and are required to be
delayed until the first business day after the date that is six months
following the Executive’s Separation from Service (or, if earlier, until the
date of the Executive’s death) to comply with Code Section 409A(a)(2)(B)(i)
shall be so delayed, and the accumulated amounts, shall be paid in a lump sum
payment to the Executive on the first business day that is after six months
after the Executive’s Separation from Service; provided, however, that if the Executive
dies during such six month period, payment shall be made to the Executive’s
estate within 60 days after the date of the Executive’s death.
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c. Notwithstanding any provision to the contrary in this Agreement, any
reimbursements or in-kind benefits under this Agreement that constitute
Deferred Compensation Payments shall be paid or provided to the Executive in a
manner consistent with Treasury Regulation Section 1.409A-3(i)(1)(iv),
including the requirement that the amount of reimbursements or in-kind benefits
provided during a year may not affect the expenses eligible for reimbursement
or in-kind benefits provided in any other year and that any reimbursements be
made on or before the last day of the year following the year in which the
expense was incurred.
IN WITNESS
WHEREOF, the Corporation and the Executive both intending to be legally bound
have duly executed and delivered this Agreement, to be effective as of the date
set forth in Section 15.
IDACORP, INC.
By:_____________________________
Its President & Chief Executive Officer
Date: ___________________________
EXECUTIVE
__________________________________
Date: ________________________
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