Exhibit 10
CONSULTING AGREEMENT
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This Consulting Agreement ("Agreement"), dated as of January 3, 2005
is made and entered into by and between XXXXXX X. XXXXXXX (hereinafter referred
to as the "Consultant"), and IDAHO POWER COMPANY, including its parent company,
IDACORP, INC., and all of IDACORP, INC's and IDAHO POWER COMPANY's subsidiaries
and/or affiliates (hereinafter collectively referred to as the "Company").
WITNESSETH THAT
WHEREAS, the Consultant was formerly Vice President, General Counsel
and Corporate Secretary with the Company; and
WHEREAS, the Company desires to retain the services of the Consultant;
and
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained herein, the Company and Consultant hereby agree as follows:
1. Term.
(a) Term of Agreement.
(i) The Company hereby retains the Consultant, and Consultant agrees
to be so retained, on the terms and subject to the conditions set forth in this
Agreement, commencing on January 3, 2005 (the "Effective Date"); and, unless
sooner terminated pursuant to section 5, continuing until the second anniversary
of the Effective Date or such later date as provided in subsection 1(a)(ii)
below (the "Term of Agreement").
(ii) The Term of Agreement shall be extended automatically for one
additional year on the last day before the second anniversary of the Effective
Date and for one additional year on each anniversary thereafter unless and until
either party gives written notice to the other not to extend this Agreement at
least 90 days before the applicable anniversary date.
2. Services of Consultant. The Consultant agrees to provide legal
services that may be required by the Company from time to time during the Term
of the Agreement including, without limitation, managing Company litigation and
regulatory matters related to the California energy situation and legal work
related to secretary, corporate governance and annual meeting matters.
Consultant agrees to meet with Xxxxxx X. Xxxxxx, Senior Vice President, General
Counsel and Secretary, or any other designee of the Company to discuss issues or
answer questions regarding the Company's legal matters upon reasonable notice at
a meeting place selected by the Company. The Company agrees that Consultant will
be reimbursed for any reasonable expenses associated with travel to and
attendance at such meetings in accordance with Section 3 of the Agreement.
3. Fees and Expenses. In consideration for the services to be provided
by the Consultant hereunder, the Company shall pay Consultant at a rate of
$200.00 per hour worked upon submission of an itemized statement of services
rendered to Xxxxxx X. Xxxxxx and with a copy to
Xxxx Xxxx. Consultant shall submit an itemized statement of services rendered to
the Company within ten (10) days following the close of each calendar month. The
Company shall pay Consultant the amount of any fees due as soon as practicable
following receipt of the itemized statement. Consultant shall not work more than
100 hours per month nor more than 1,000 hours prior to the second anniversary of
the Effective Date without the prior written approval of Xxxxxx X. Xxxxxx. The
Consultant shall also be entitled to reimbursement of reasonable expenses
associated with the Consultant's provision of services pursuant to this
Agreement, provided such expenses are approved in advance in writing by the
Company. Consultant shall be required to submit an itemized accounting of all
reasonable expenses incurred during the previous calendar month to Xxxxxx X.
Xxxxxx with a copy to Xxxx Xxxx. Consultant shall submit such itemized
accounting within two (2) weeks following the close of such month during which
the expenses were incurred.
4. Independent Contractor Status. Consultant shall be an independent
contractor and as such shall not have any authority to bind or commit the
Company. The Consultant and the Company agree that Consultant is self-employed
and will be responsible for all taxes, self-employment taxes and income taxes.
The Consultant shall not participate in any Company employee benefit plans. The
Company shall not withhold taxes from any payments to Consultant.
5. Termination of Agreement for Cause. The Company may terminate the
Agreement during the Term of Agreement at any time for Cause. For purposes of
this Agreement, "Cause" means conduct amounting to: (1) fraud or dishonesty
against the Company, (2) willful misconduct, repeated refusal to follow the
reasonable direction of the Company or committing a knowing violation of the law
in the course of the performance of Consultant's duties, (3) a conviction or
plea of guilty or nolo contendere to a felony or crime involving dishonesty, and
(4) a material breach or material violation of the terms of this Agreement. Upon
termination of this Agreement for any reason, Consultant will cease all work and
shall promptly provide to the Company any materials that may have been provided
to Consultant in connection with this Agreement and all work product and files
developed by Consultant under this Agreement. The Term of Agreement shall
terminate upon the Consultant's death unless terminated earlier pursuant to some
other provision of this Agreement.
6. Successors.
(a) Assignment of Agreement. This Agreement is personal to the
Consultant and, without the prior written consent of the Company, shall not be
assignable by the Consultant otherwise than by will or the laws of descent and
distribution.
(b) Successors of the Company. No rights or obligations of the Company
under this Agreement may be assigned or transferred except that 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. As used in this Agreement,
"Company" shall mean the Company as herein before defined and any successor that
executes and delivers the agreement
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provided for in this section 6 or which otherwise becomes bound by all the terms
and provisions of this Agreement by operation of law.
7. Miscellaneous.
(a) Governing Law and Captions. This Agreement shall be governed by,
and construed in accordance with, the laws of Idaho without reference to
principles of conflict of laws. The captions of this Agreement are not part of
the provisions hereof and shall have no force or effect.
(b) Notices. All notices and other communications under this Agreement
shall be in writing and shall be given by hand delivery or by facsimile
(provided confirmation of receipt of such facsimile is received) to the other
party or by registered or certified mail, return receipt requested, postage
prepaid, or by Federal Express or other nationally-recognized overnight courier
that requires signatures of recipients upon delivery and provides tracking
services, addressed as follows:
If to the Consultant:
Xxxxxx X. Xxxxxxx
0000 Xxxxxx Xxxxx
Xxxxx, Xxxxx 00000
If to the Company:
Xxxxxx X. Xxxxxx
Senior Vice President, General Counsel & Secretary
IDACORP, Inc.
0000 X. Xxxxx Xxxxxx
Xxxxx, Xxxxx 00000
With a copy to:
Xxxx Xxxx
Administrative Assistant
Idaho Power Company
0000 X. Xxxxx Xxxxxx
Xxxxx, Xxxxx 00000
or to such other address as either party furnishes to the other in
writing in accordance with this subsection 7(b). Notices and communications
shall be effective when actually received by the addressee.
(c) Amendment. This Agreement may not be amended or modified except by
a written agreement executed by the parties hereto or their respective
successors and legal representatives.
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(d) Severability. The invalidity or unenforceability of any provision
of this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement. If any provision of this Agreement shall be held
invalid or unenforceable in part, the remaining portion of such provision,
together with all other provisions of this Agreement, shall remain valid and
enforceable and continue in full force and effect to the fullest extent
consistent with law.
(e) Waiver. The Consultant's or the Company's failure to insist upon
strict compliance with any provision of, or to assert any right under, this
Agreement shall not be deemed to be a waiver of such provision or right or of
any other provision of or right under this Agreement.
(f) Entire Understanding; Counterparts. The Consultant and the Company
acknowledge that this Agreement supersedes and terminates any other agreements
between the Consultant and the Company. This Agreement may be executed in
several counterparts, each of which shall be deemed an original, and said
counterparts shall constitute but one and the same instrument.
(g) Rights and Benefits Unsecured. The rights and benefits of the
Consultant under this Agreement may not be anticipated, assigned, alienated, or
subject to attachment, garnishment, levy, execution, or other legal or equitable
process except as required by law. Any attempts by the Consultant to anticipate,
alienate, assign, sell, transfer, pledge or encumber the same shall be void.
Payments hereunder shall not be considered assets of the Consultant in the event
of insolvency or bankruptcy.
(h) Noncontravention. The Company represents that the Company is not
prevented from entering into, or performing this Agreement by the terms of any
law, order, rule or regulation, its by-laws or declaration of trust, or any
agreement to which it is a party.
(i) Section and Subsection Headings. The section and subsection
headings in this Agreement are for convenience of reference only; they form no
part of this Agreement and shall not affect its interpretation.
8. Confidentiality.
a. Confidential Information. All information which the Company
discloses to the Consultant shall be deemed to be Confidential Information,
protected under the terms of this Agreement, provided in the case of tangible
information, such information is marked with a legend or writing, stating that
it is Confidential Information, or with a similar marking, and in the case of
orally, visually, or electronically disclosed information, such information is
orally identified at the time of initial disclosure as being Confidential
Information or with a similar identification and followed within thirty (30)
days by a written notice setting forth a brief description of the information
and confirming the Confidential Information classification. All tangible, oral,
visual, and electronic information disclosed in accordance with the terms of
this paragraph shall hereinafter be referred to as "Confidential Information".
b. Protection of Confidential Information. During the term of the
Agreement and for a period of three (3) years after its expiration, the
Consultant will safeguard said Confidential
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Information with the same degree of care as it exercises over its own
Confidential Information, but in no event less than reasonable care.
c. Exceptions. Confidential Information will not be deemed to include
information which, (i) at the time of disclosure to the Consultant is generally
available to the public or thereafter, without any fault of the Consultant,
becomes generally available to the public by publication or otherwise, or which
becomes general knowledge; or (ii) was in the possession of the Consultant prior
to its disclosure by the disclosing Party; or (iii) was independently made known
without restriction to the Consultant by a third party not under any obligation
of secrecy or confidentiality to the disclosing Party; or (iv) was developed by
the Consultant independently from the Confidential Information disclosed to it
by the disclosing Party.
IN WITNESS WHEREOF, the Consultant has hereunto set the Consultant's
hand and the Company has caused this Agreement to be executed, all as of the day
and year first above written.
COMPANY
By: /s/Xxxxxx X. Xxxxxx
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Its: Senior Vice President, General Counsel
and Secretary
CONSULTANT
/s/Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx
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