EXHIBIT 10(E)
RETENTION AGREEMENT
PARTIES
The parties to this Retention Agreement ("Agreement") are Nevada Power Company
and Xxxxx X. Xxxxxxx.
BASIS
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(a) Employee currently holds the position of Vice President, Power Delivery,
with Company.
(b) Company is currently in the process of divesting itself of all or a portion
of its generation facilities ("Divestiture").
(c) Company and Employee have executed the Original Agreement. Company is
currently in the process of merging with Sierra Pacific Resources
("Merger") which is a "change in control" as defined in the Original
Agreement. Pursuant to the terms of the Original Agreement and upon
completion of the Merger, Employee will be entitled to receive the
involuntary termination benefits contained in Section 5 of the Original
Agreement.
(d) Company and Employee desire to have Employee remain an employee of
Successor Company under the terms of this Agreement. Therefore, upon
completion of the Merger, this Agreement is intended to replace the
Original Agreement and the Original Agreement is intended to become void
and unenforceable. The benefits contained in this Agreement are in addition
to Employee's salary, bonuses, SERP, and all other benefits which Employee
is currently entitled to receive as a result of his employment at Company
and which will not be reduced in aggregate value from current levels during
the term of this Agreement.
(e) Employee may have access to Confidential Information. In addition, Employee
may develop on behalf of Company an acquaintance with Company's customers
and prospective customers. Employee will occupy a position of trust and
confidence with respect to such customers and such Confidential
Information. Employee understands that any entrusting of Confidential
Information and/or customer contacts or relationships to Employee by
Company is done in reliance on a confidential relationship arising out of
employment with Company. Employee understands that Confidential Information
and customer contracts that Employee may acquire or may have access to is
of great value to Company.
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(f) The consideration for the terms and conditions of this Agreement is
adequate and is fully set forth in this Agreement.
TERMS OF AGREEMENT
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1. Defined Terms
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1.1 Company means Nevada Power and any successor organization.
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1.2 Effective Date means the date this Agreement becomes effective. The
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Effective Date shall be the date that both the Company and Employee
have signed this Agreement and the Merger has been completed.
1.3 Employee means Xxxxx X. Xxxxxxx.
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1.4 Original Agreement means the Employment Agreement dated on or about
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March 13, 1998, between Company and Employee.
1.5 Items means documents, reports, drawings, diagrams, summaries,
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photographs, designs, specifications, formulae, plans, samples,
models, research and development information, prototypes, tools,
equipment, proposals, marketing and sales plans, customer information,
customer lists, regulatory files, financial data, costs, pricing
information, supplier information, written, printed or graphic matter,
or other information and materials that concern Company's business and
that come into Employee's possession or about which Employee has
knowledge by reason of employment with Company.
1.6 Program means the Sierra Pacific Resources 1999 Merger Severance
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Program which Company is offering certain employees, including
Employee and which by reference is made a part of this Agreement.
1.7 Termination or Terminated means the termination of Employee's status
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as an active employee of Company by either Company or Employee for any
reason. If Employee becomes eligible for benefits under the Company's
Long-Term Disability Plan prior to July 31, 2002, then Employee shall
be entitled to declare his employment terminated for purposes of this
Agreement at his option.
2. Benefits to Employee
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2.1 Company shall pay to Employee the following amounts. The principal
amount is economically similar to the benefits to which Employee would
be entitled to receive after a voluntary termination under the
Original Agreement.
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These amounts shall be paid to Employee under the following schedule,
less withholding, assessments and authorized deductions:
Payment Date Principal Interest Payment
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Amount
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Within 15 days after the
close of the Merger 125,000 0 125,000
October 1, 1999 29,300 14,920 44,220
January 1, 2000 29,300 13,750 43,050
April 1, 2000 29,300 12,580 41,880
July 1, 2000 29,300 11,400 40,700
October 1, 2000 29,300 10,230 39,530
January 1, 2001 29,300 9,060 38,360
April 1, 2001 29,300 7,890 37,190
July 1, 2001 29,300 6,720 36,020
October 1, 2001 29,300 5,540 36,020
January 1, 2002 29,300 4,370 33,670
July 31, 2002 80,000 6,430 86,430
TOTALS 498.000 102,890 600,890
If Employee's employment is Terminated, then Employee shall be paid
the remaining unpaid principal amount and interest prorated to the
date of termination within 30 days of Employee's Termination. If
Employee dies prior to July 31, 2002, then Employee's estate shall be
paid the remaining unpaid principal amount and interest prorated to
the date of death within 30 days of Employee's death.
The above payments will not be recognized as covered pay under any
employee benefit plan sponsored by the Company except for the Deferred
Compensation Program.
2.2 Employee shall be paid for any accrued but unused vacation as defined
under Company's vacation policy then in effect.
2.3 If Employee's employment is Terminated and/or if Employee retires,
then Employee shall be entitled to receive an amount which is
economically similar to the following:
2.3.1 The Program includes an enhancement to the Nevada Power Company
Retirement Plan ("Retirement Plan") ("Enhanced Lump Sum"). The
Enhanced Lump Sum is based upon the following calculations and
conditions:
(1) If Employee is under the age of 55, then Employee shall
receive the present value of an Early Retirement Benefit
commencing at age 55, calculated using the Early Retirement
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Fact (i.e., 65%) that applies to employees who retire at
age 55. If Employee is over the age of 55, then at his
actual age under the terms of the plan; and
(2) The dollar limitation in Section 5.2(c) of the Retirement
Plan will not apply, however, all other restrictions
required by federal law (e.g., Internal Revenue Code (S)415
limits and spousal waivers) will apply.
Company shall maintain a life insurance policy (either Company
owned or other policy) in an amount no less than the then
current value of the Enhanced Lump Sum and payable to a
beneficiary named by Employee. This policy shall remain in
effect so long as Employee is an active employee of Company.
2.3.2 Company shall add a total of five years to Employee's age or
years of service or a combination thereof in order to qualify
for, or improve, Employee" retiree medical benefits contained
in Company" health care plans.
Employee understands and agrees that the Retirement Plan is a
"qualified" plan and offering Employee the Enhanced Lump Sum benefit
set forth in Section 2.3.1 above may violate one or more sections of
the Internal Revenue Code and therefore, the Retirement Plan may not
be able to pay this benefit to Employee. In such case, Company and
Employee will work together to reach an agreement as to a cash payment
from general assets that produces a value comparable to the lump sum
benefit that could not be paid from the qualified plan. Such value
shall factor in the time value of tax consequences and shall be offset
by the value of the payments expected to be made from the qualified
plan.
2.4 For a period of 24 months following Termination, the Company will
arrange to provide the Employee with health (including
medical/hospital, dental and vision) and life benefits substantially
similar to those that Employee was receiving or entitled to receive
immediately prior to Termination. These benefits will be reduced to
the extent comparable benefits are actually received by or in respect
of Employee from another employer during the 24-month period, and any
such benefits actually received shall be reported by Employee or other
recipient to the Company. During the 24-month period, the Company will
use its best efforts to maintain in full force and effect for the
continued benefit of Employee all benefits referenced herein or will
arrange to make available to Employee benefits substantially similar
to the referenced benefits. Such benefits will be provided to Employee
on the same terms and conditions (including employee contributions
toward the premium payments) under which Employee was entitled to
participate immediately prior to Termination. To the extent the
coverage or benefits provided herein
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results in Employee or any dependent or beneficiary thereof incurring
additional federal, state or local taxes that would otherwise not have
been incurred in connection with the provision of such coverage of
benefits had Employee's employment not been terminated, the Company
shall promptly pay Employee, dependent or beneficiary, as the case may
be, on an after-tax basis, an additional payment, in an amount equal
to all taxes, including interest and penalties thereon, imposed as the
result of such coverage or benefits.
2.5 Anything in this Agreement to the contrary notwithstanding, if it is
determined (as hereafter provided) that any payment or distribution by
the Company or any of its affiliates to or for the benefit of
Employee, 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 Employee
will be entitled to receive an additional payment or payments
(collectively, a "Gross-Up Payment") in an amount such that, after
payment by the Executive of all taxes (including any interest or
penalties imposed with respect to such taxes), including any Excise
Tax, imposed upon the Gross-Up Payment, the Executive retains an
amount of the Gross-Up Payment equal to the Excise Tax imposed upon
the Payments. No Gross-Up Payment will be made with respect to the
Excise Tax, if any, attributable to (a) any incentive stock option, as
defined by Section 422 of the Code ("ISO") granted prior to the
execution of this Agreement (unless a comparable Gross-Up Payment has
theretofore been made available with respect to such option), or (b)
any stock appreciation or similar right, whether or not limited,
granted in tandem with any ISO. All determinations required to be
made under this Section, including whether an Excise Tax is payable by
the Executive and the amount of such Excise Tax and whether a Gross-Up
Payment is required to be paid by the Company to the Executive and the
amount of such Gross-Up Payment, will be made by a nationally
recognized firm of certified public accountants (the "Accounting
Firm") selected by Employee in his sole discretion. Employee will
direct the Accounting Firm to submit its determination and detailed
supporting calculations to both the Company and Employee within 15
calendar days after Termination, if applicable, and any other such
time or times as may be requested by the Company or employee. If the
Accounting Firm determines that any Excise Tax is payable by Employee,
then the
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Company will pay the required Gross-Up Payment to the Executive within
five business days after receipt of such determination and calculation
with respect to any Payment to the Executive. If the Accounting Firm
determines that no Excise Tax is payable by Employee, then it will, at
the same as it makes such determination, furnish the Company and
Employee an opinion that Employee has substantial authority not to
report any Excise Tax on Employee's federal 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 Employee. 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 have not been made by the
Company should have been made (an "Underpayment"), consistent with the
calculations required to be made hereunder. If the Company exhausts or
fails to pursue its remedies contained herein and Employee is required
to make a payment of any Excise Tax, then Employee 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 Employee as promptly as possible.
Any such Underpayment will be promptly paid by the Company to, or for
the benefit of, Employee within five business days after receipt of
such determination and calculations. The Company and Employee will
each provide the Accounting Firm access to and copies of any books,
records and documents in the possession of the Company or Employee, 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. The federal income or other tax returns
filed by Employee will be prepared and filed on a consistent basis
with the determination of the Accounting Firm with respect to the
Excise Tax payable by Employee. Employee 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 Employee's federal income tax return as filed with the Internal
Revenue Service and corresponding other 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 Employee'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, Employee will within five business days pay to the Company
the amount of such reduction. 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 Employee,
then the Company will reimburse employee the full amount of such fees
and expenses within five business days after receipt from Employee of
a statement therefor and reasonable evidence of his payment thereof.
Employee will
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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 Employee actually receives notice of such claim and
Employee 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 know by Employee). Employee will not pay such
claim prior to the earlier of (a) the expiration of the 30-calendar-
day period following the date on which Employee 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 Employee in writing
prior to the expiration of such period that it desires to contest such
claim, Employee will:
(1) Provide the Company with any written records or documents in
Employee's possession relating to such claim reasonably requested
by the Company;
(2) 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 claims by an attorney competent in respect of the
subject matter and reasonably selected by the Company;
(3) cooperate with the Company in good faith in order to effectively
contest such claim; and
(4) 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
Employee, 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. The Company will control all proceedings taken in
connection with the contest on any claim contemplated by this Section,
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 authority in
respect of such claim (provided, however, that Employee may
participate therein at his own cost and expense) and may, at its
option, either direct Employee to pay the tax claimed and xxx for a
refund or contest the claim in any permissible manner, and Employee
agrees to prosecute such contest to a determination before any
administrative tribunal, in a court of initial jurisdiction and in one
or more appellate courts, as the Company will determine; provided,
however, that if the Company
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directs Employee to pay the tax claimed and xxx for a refund, the
Company will advance the amount of such payment to Employee on an
interest-free basis and will indemnify and hold Employee harmless, on
an after-tax basis, from any Excise Tax or income or other tax,
including interest or penalties with respect thereto, imposed with
respect to such advance; and provided further, however, that any
extension of the statute of limitations relating to payment of taxes
for the taxable year of Employee 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 Employee 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. If, after the receipt
by Employee of an amount advanced by the Company pursuant to this
Section, Employee receives any refund with respect to such claim, then
Employee 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 thereto). If, after the receipt by Employee
of an amount advanced by the Company pursuant to this Section, a
determination is made that Employee will not be entitled to any refund
with respect to such claim and the Company does not notify Employee 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 Gross-Up Payment required to be paid by the Company to Employee
pursuant to this Section.
3. Company Property
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3.1 Upon Termination, Employee shall deliver to Company all Items in
Employee's possession or under Employee's control which are owned by
Company (including all copies), and Employee shall retain no copies
thereof.
4. Confidentiality
4.1 Employee agrees that he will not, without prior written consent of the
Company, during the time of employment with Company or thereafter
disclose to any person not employed by the Company, or use in
connection with engaging in Competition with the Company, any
confidential or proprietary information of the Company. For purposes
of this Agreement, the term "confidential or proprietary information"
will include all information of any nature and in any form that is
owned by the Company and that is not publicly available or generally
known to persons engaged in businesses similar or related to those of
the Company. Confidential Information will include, without
limitation, the Company's financial matters, customers, employees,
industry contracts, and all other secrets and all other information
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of a confidential or proprietary nature. The foregoing obligations
will cease if such confidential or proprietary information will have
become, through no fault of the Executive, generally known to the
public or the Executive is required by law to make disclosure (after
giving the Company notice and an opportunity to contest such
requirement).
5. Non-Competition
5.1 Employee agrees that during the time of employment with Company and
for one year thereafter, he will not, without the prior written
consent of the company, engage in Competition (as defined below) with
the Company. For purposes of this Agreement, if the Executive takes
any of the following actions he will be engaged in "Competition":
engaging in or carrying on, directly or indirectly, any enterprise,
whether as an advisor, principal agent, partner, officer, director,
employee, stockholder, associate or consultant to any person,
partnership, corporation, or any other business entity that is
principally engaged in the business of the generation, transmission,
or distribution of electricity in states in which the Company or its
affiliates have significant operations; provided, however, that
"Competition" will not included (a) the mere ownership of securities
in any enterprise and exercise of rights appurtenant thereto, or (b)
participation in management of any enterprise or business operation
thereof other than in connection with the competitive operation of
such enterprise.
5.2 Employee agrees that during the time of employment with Company and
for three years thereafter, he will not assist a third party in
preparing or making an unsolicited bid for the Company, engage in a
proxy contest with the Company, or engage in any other similar
activity.
5.3 Employee agrees that during the time of employment with Company and
for one year thereafter, he will not attempt to influence, persuade or
induce, or assist any other person in so persuading or inducing, any
employee of the Company to give up, or to not commence, employment or
a business relationship with the Company.
5.4 Employee agrees that the restrictions set forth in paragraphs 5.1,
5.2, and 5.3 are fair and reasonable and are reasonably required for
the protection of the interests of Company. Employee agrees that
compliance with the provisions of paragraphs 5.1, 5.2 and 5.3 will not
cause Employee undue hardship nor unreasonably interfere with
Employee's ability to earn a livelihood.
6. Miscellaneous Provisions
6.1 Agreement is Confidential: Unless and until the terms of this
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Agreement, and the amount of any payment eligible to be paid or
actually paid under this Agreement, are disclosed in writing to the
public by Company pursuant to any
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applicable legal duty to disclose such information, it shall be a
condition of eligibility to receive any payment pursuant to this
Agreement that Employee hold the terms of this Agreement and the
amount of any payment hereunder in strict confidence. Employee may
disclose such information on a confidential basis to Employee's spouse
(if any), and to any financial counselor, tax advisor or legal counsel
retained by Employee.
6.2 Post-termination Assistance: Employee agrees that after the Employee's
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employment with the Company has terminated the Executive will provide,
upon reasonable notice, such information and assistance to the Company
as may reasonably be requested by the Company in connection with any
matter and the Company agrees to reimburse Employee for any out-of-
pocket expenses, including travel expense.
6.3 Legal Fees and Expenses: It is the intent of the Company that Employee
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not be required to incur legal fees and the related expenses
associated with the interpretation, enforcement or defense of
Employee's rights under this Agreement by litigation or otherwise
because the cost and expense thereof would substantially detract from
the benefits intended to be extended to the Executive hereunder.
Accordingly, if it should appear to Employee that the Company has
failed to comply with any of its obligations under this Agreement or
in the event that the Company or any other person takes or threatens
to take any action to declare this Agreement void or unenforceable, or
institutes any litigation or other action or proceeding designed to
deny, or to recover from Employee the benefits provided or intended to
be provided to Employee hereunder, the Company irrevocably authorizes
the Employee to retain counsel of Employee's choice, at the expense of
the Company as hereafter provided, to advise and represent the
Executive in connection with any such interpretation, enforcement or
defense, including without limitation the initiation or defense of any
litigation or other legal action, whether by or against the Company or
any director, officer, stockholder, or other person affiliated with
the Company, in any jurisdiction. Notwithstanding any existing or
prior attorney-client relationship between the Company and such
counsel, the Company irrevocably consents to Employee's entering into
an attorney-client relationship with such counsel, and in that
connection the Company and the Employee agree that a confidential
relationship shall exist between Employee and such counsel. Without
respect to whether Employee prevails, in whole or in part, in
connection with any of the foregoing, the Company will pay and be
solely financially responsible for any and all attorneys' and related
fees and expenses incurred by Employee in connection with any of the
foregoing.
6.4 Successors and Binding Agreement: (i) The Company will require any
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successor (whether direct or indirect, by purchase, merger,
consolidation, reorganization, operation of law or otherwise) to all
or substantially all of the business or assets of the Company, by
agreement in form and substance
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satisfactory to the Executive, expressly to assume and agree to
perform this Agreement in the same manner and to the same extent the
Company would be required to perform if no such succession had taken
place. This Agreement will be binding upon and inure to the benefit of
the Company and any successor to the Company, including without
limitation any persons acquiring directly or indirectly all or
substantially all of the business or assets of the Company whether by
purchase, merger, consolidation, reorganization, operation of law or
otherwise (and such successor shall thereafter be deemed the "Company"
for the purposes of this Agreement), but will not otherwise be
assignable, transferable or delegable by the Company. (ii) This
Agreement will inure to the benefit of and be enforceable by
Employee's personal or legal representatives, executors,
administrators, successors, heirs, distributees and legatees. (iii)
This Agreement is personal in nature and neither of the parties hereto
shall, without the consent of the other, assign, transfer or delegate
this Agreement or any rights or obligations hereunder. Without
limiting the generality or effect of the foregoing, the Executive's
right to receive payments hereunder will not be assignable,
transferable or delegable, whether by pledge, creation of a security
interest, or otherwise, other than by a transfer by Executive'' will
or by the laws of descent and distribution and, in the event of any
attempted assignment or transfer contrary to this Section, the Company
shall have no liability to pay any amount so attempted to be assigned,
transferred or delegated.
6.5 Not A Restraint on the Business Discretion of Company: Nothing in this
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Agreement is intended to limit the discretion of Company to take any
action with regard to the Divestiture process which the Company may
consider appropriate. This Agreement is not a contract to retain
Employee in the employment of Company for any prescribed period of
time.
6.6 Waiver: The waiver by either party to this Agreement of a violation by
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the other party shall not be construed as a wavier of any subsequent
violation.
6.7 Jurisdiction and Venue: This Agreement shall be construed and enforced
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according to the laws of the State of Nevada to the extent not
preempted by the federal laws of the United States of America. All
disputes arising out of this Agreement shall be subject to the
exclusive jurisdiction and venue of the state and federal courts
located in Xxxxx County, Nevada.
6.8 Withholding of Taxes: The Company may withhold from any amounts
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payable under this Agreement all federal, state, city or other taxes
as the Company is required to withhold pursuant to any law or
government regulation or ruling.
6.9 Severability: Any provision of this Agreement that is deemed invalid,
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illegal or unenforceable in any jurisdiction will, as to that
jurisdiction be ineffective to the extent of such invalidity,
illegality or unenforceability, without affecting
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in any way the remaining provisions hereof in such jurisdiction or
rendering that or any other provisions of this Agreement invalid,
illegal, or unenforceable in any other jurisdiction. If any covenant
should be deemed invalid, illegal or unenforceable because its scope
is considered excessive, such covenant will be modified so that the
scope of the covenant is reduced only to the minimum extent necessary
to render the modified covenant valid, legal and enforceable.
6.10 Notices: All notices, consents, requests or approvals ("Notices"),
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required or permitted to be given pursuant to this Agreement, shall be
in writing and will be deemed to have been duly given when hand
delivered or dispatched by electronic facsimile transmission (with
receipt thereof confirmed), or five business days after having been
mailed by United States registered or certified mail, return receipt
requested, postage prepaid, or three business days after having been
sent by a nationally recognized overnight courier service such as
Federal Express or UPC, at the following address, or to such other
address as any party may have furnished to the other in writing and in
accordance herewith, except that notices of changes of address will be
effective upon receipt. If to the Company, then addressed to the
attention of the CEO at 0000 Xxxx Xxxxxx Xxxxxx, Xxx Xxxxx, Xxxxxx
00000. If to the Executive, then address to him at 0000 Xxxxx Xxxx
Xx., Xxx Xxxxx, Xxxxxx 00000.
6.11 Entire Agreement: The terms of this Agreement are intended by the
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parties to be the final expression of their agreement with respect to
the subject matter of this Agreement. The parties further intend that
this Agreement will constitute the complete and exhaustive statement
of its terms and that no extrinsic evidence whatsoever may be
introduced in any judicial, administrative or other legal proceeding
to vary the terms of this Agreement.
6.12 Amendments; Waivers: This Agreement may not be modified, amended, or
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terminated except by an instrument in writing, signed by Employee and
the Company. Failure on the part of either party to complain of any
action or omission, breach or default on the party of the other party,
no matter how long the same may continue, will never be deemed to be a
waiver of any rights or remedies hereunder, at law or in equity.
Employee or the Company may waive compliance by the other party with
any provision of this Agreement that such other party was or is
obligated to comply with or perform only through an executed writing;
provided, however, that such waiver will not operate as a waiver of,
or estoppel with respect to, any other or subsequent failure.
6.13 No Inconsistent Actions: The parties will not voluntarily undertake or
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fail to undertake any action or course of action that is inconsistent
with the provisions or essential intent of this Agreement.
Furthermore, it is the intent of the parties hereto to act in a fair
and reasonable manner with respect to the interpretation and
application of the provisions of this Agreement.
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6.14 Headings and Section References: The headings used in this Agreement
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are intended for convenience or reference only and will not in any
manner amplify, limit, modify or otherwise be used in the construction
or interpretation of any provision of this Agreement. All section
references are to sections of this Agreement, unless otherwise noted.
6.15 Interest: Without limiting the rights of Employee at law or in equity,
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if the Company fails to make any payment or provide any benefit
required to be made or provided hereunder on a timely basis, the
Company will pay interest on the amount or value thereof at an
annualized rate of interest equal to the so-called composite "prime
rate" as quoted from time to time during the relevant period in the
Northeast Edition of The Wall Street Journal. Such interest will be
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payable as it accrues on demand. Any change in such prime rate will be
effective on and as of the date of such change.
6.16 Review of Agreement: Employee acknowledges that Employee had
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sufficient opportunity to review this Agreement with an attorney or,
if Employee did not do so, it is because Employee read and understands
this Agreement and did not believe that legal advice was necessary.
Employee agrees that the restrictions contained in this Agreement are
fair and appropriate under the circumstances.
6.17 Effective Date: This Agreement shall become effective on the Effective
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Date. On the Effective Date, the Original Agreement shall become void
and unenforceable.
NEVADA POWER COMPANY EMPLOYEE
By_________________________________ __________________________
Chief Executive Officer Date Signature Date
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