SEPARATION AGREEMENT
EXHIBIT 10.2
This
Separation Agreement (this “Agreement”) is entered into as of February 17, 2010
between NV Energy, Inc., a Nevada corporation (the “Company”), and Xxxxxxx X.
Xxxxxx (the “Executive”).
WHEREAS,
the Executive served as Senior Vice President, Chief Financial Officer and
Treasurer of the Company until his resignation from such position on February 2,
2010; and
WHEREAS,
the Company and the Executive desire to set forth herein their mutual agreement
with respect to all matters relating to the Executive’s resignation and
cessation of employment with the Company and its affiliates and the Executive’s
release of claims upon the terms set forth herein.
NOW,
THEREFORE, in consideration of the mutual promises and agreements contained
herein, the adequacy and sufficiency of which are hereby acknowledged, the
Company and the Executive hereby agree as follows:
1. Resignation; Termination of
Employment. The Company and the Executive hereby acknowledge
that the Executive resigned as Senior Vice President, Chief Financial Officer
and Treasurer of the Company and from all other positions (if any) with the
Company and its affiliates as of February 2, 2010 (the “Employment Termination
Date”).
2. Payment of Accrued
Amounts. The Company shall pay to the Executive within 30 days
following the Employment Termination Date all amounts due to the Executive for
salary accrued for services rendered through the Employment Termination Date,
less an amount for paid time off used but not accrued as of the Employment
Termination Date.
3. Separation Payments;
Reimbursements.
(a) Separation
Payments. Provided that the Executive complies with the
covenants contained in Sections 7(a) and 8 hereof and in consideration for the
release of claims contained in Section 10 hereof and provided that the Executive
has not revoked the release, the Company shall pay to the Executive within 30
days following the Employment Termination Date the lump sum cash amount of
$687,519.28, which is comprised of the following:
(i) $420,000,
equal to one year of base salary;
(ii) $187,600,
equal to the Executive’s 2009 short-term incentive plan award;
1
(iii) $55,000
as additional severance pay;
(iv) $4,919.28,
equal to 12 months of premiums under COBRA (as defined in Section 4 hereof);
and
(v) $20,000
for outplacement services.
(b) Reimbursements. In
addition to the lump sum separation payment set forth in Section 3(a) hereof,
the Company shall reimburse the Executive, in accordance with Section 6
hereof, for the following:
(i) reasonable
relocation costs incurred by the Executive associated with the sale of his Las
Vegas residence, which shall include only his reasonable personal property
moving expenses incurred by him prior to December 31, 2010 and his reasonable
real estate brokerage commissions incurred by him prior to December 31, 2011 (it
being understood that such relocation costs shall not include any loss resulting
from the sale of his residence); and
(ii) up to
$7,500 for expenses incurred by the Executive for the payment of legal fees
relating to the review and negotiation of this Agreement;
4. Employee
Benefits. As of the Employment Termination Date, the Executive
shall be entitled to those employee benefits provided by the Company upon
termination of employment pursuant to the terms and subject to the conditions of
the applicable employee benefit plans and programs of the Company in which the
Executive participates, including the vesting and payment of benefits pursuant
to the Company’s Retirement Plan, 401(k) Plan, 401(k) Restoration Plan, Pension
Restoration Plan and Supplemental Executive Retirement Plan, in each case in
accordance with, and subject to, the terms and conditions of such
plans. In addition, the Executive may elect to continue coverage, at
his expense, under the Company’s employee and executive life insurance policies
and the Company’s executive disability insurance policy in accordance with, and
subject to, the terms and conditions of such policies. Pursuant to
the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”), the
Executive may elect to continue coverage for the Executive and his dependents
under the Company’s medical plan for a period of up to 18 months following the
Employment Termination Date or as otherwise provided by COBRA. Such
COBRA coverage shall be at the Executive’s expense, except as otherwise provided
in Section 3(a)(iv) hereof.
5. Federal and State
Withholding. The Company shall deduct from the amounts payable
to the Executive pursuant to Sections 2, 3 and 4 hereof the amount of all
required federal and state withholding taxes in accordance with the Executive’s
Form W-4 on file with the Company and all applicable social security
taxes.
6. Section
409A. This Agreement is intended to comply with the
requirements of Section 409A of the Internal Revenue Code of 1986, as amended
(the “Code”),
2
and shall
be interpreted and construed consistently with such intent. The
payments to the Executive pursuant to this Agreement are also intended to be
exempt from Section 409A of the Code to the maximum extent possible, under
either the separation pay exemption pursuant to Treasury regulation
§1.409A-1(b)(9)(iii) or as short-term deferrals pursuant to Treasury regulation
§1.409A-1(b)(4), and for this purpose each payment shall be considered a
separate payment. In the event that the terms of this Agreement would
subject the Executive to taxes or penalties under Section 409A of the Code
(“409A Penalties”), the Company and the Executive shall cooperate diligently to
amend the terms of this Agreement to avoid such 409A Penalties, to the extent
possible; provided that in no event shall the Company be responsible for any
409A Penalties that arise in connection with any amounts payable under this
Agreement. It is intended that the Executive’s “separation from
service,” within the meaning of Section 409A of the Code, occurred on February
2, 2010. Any reimbursement payable to the Executive pursuant to this
Agreement or otherwise shall be conditioned on the submission by the Executive
of all expense reports reasonably required by the Company under any applicable
expense reimbursement policy, and shall be paid to the Executive within 30 days
following receipt of such expense reports, but in no event later than the last
day of the calendar year following the calendar year in which the Executive
incurred the reimbursable expense. Any amount of expenses eligible
for reimbursement, or in-kind benefit provided, during a calendar year shall not
affect the amount of expenses eligible for reimbursement, or in-kind benefit to
be provided, during any other calendar year. The right to any
reimbursement or in-kind benefit pursuant to this Agreement or otherwise shall
not be subject to liquidation or exchange for any other
benefit.
7. Nondisparagement.
(a) The
Executive agrees that the Executive shall not directly (or through any other
person or entity) make any public or private statements (whether oral or in
writing) that are derogatory or damaging to the Company or any of its
affiliates, including, but not limited to, its businesses, activities,
operations, affairs, products, services, reputation or prospects or any of their
directors, officers or employees. This Section 7(a) shall not be
deemed to be breached by testimony of the Executive given in any judicial or
governmental proceeding which the Executive reasonably believes to be truthful
at the time given or by any other action of the Executive which he reasonably
believes is taken in accordance with the requirements of applicable law or
administrative regulation.
(b) Except
for confirming the Executive’s dates of employment and job title or as otherwise
required by law, administrative regulation or securities exchange rules, the
Company’s responses to external inquiries regarding the Executive’s resignation
and cessation of employment with the Company shall be made in a manner which is
consistent with the Company’s press release dated February 2,
2010. The Company agrees that the executive officers of the Company
authorized by the Company to make public statements shall not make, or authorize
the making of, any public statement which disparages the
Executive. This Section 7(b) shall not be deemed to be breached
by any statement made by or on behalf of the Company or any testimony given by
or on behalf of the Company in any judicial or governmental proceeding, in each
case which the Company reasonably believes to be truthful at
3
the time
given, or by any other statement or action by or on behalf of the Company which
the Company reasonably believes is made or taken in accordance with the
requirements of applicable law, administrative regulation or securities exchange
rules.
8. Confidentiality. The
Executive shall not, at any time following the Employment Termination Date, make
use of or disclose, directly or indirectly, any (a) trade secret or other
confidential or secret information of the Company or any of its affiliates, or
(b) other technical, business, proprietary or financial information of the
Company or any of its affiliates not available to the public generally
(“Confidential Information”), except to the extent that such Confidential
Information (i) becomes a matter of public record or is published in a
newspaper, magazine or other periodical or on electronic or other media
available to the general public, other than as a result of any act or omission
of the Executive, or (ii) is required to be disclosed by any law, regulation or
order of any court or regulatory commission, department or agency, provided that
the Executive gives prompt notice of such requirement to the Company to enable
the Company to seek an appropriate protective order. Within five days
following the Employment Termination Date, the Executive shall surrender to the
Company all records, memoranda, notes, plans, reports and other documents and
data, whether in electronic or paper form, which constitute Confidential
Information which the Executive may then possess or have under the Executive’s
control (together with all copies thereof).
9. Remedies;
Jurisdiction. Without limiting the right of the Company to
pursue all other legal and equitable remedies available for violation by the
Executive of the covenants contained in Sections 7(a) and 8 hereof, it is
expressly agreed by the Executive and the Company that such other remedies
cannot fully compensate the Company for any such violation and that the Company
shall be entitled to a restraining order and injunctive relief to prevent any
such violation or any continuing violation thereof. The Executive
agrees to submit to the personal jurisdiction of the courts of the State of
Nevada in any action by the Company to enforce an arbitration award against the
Executive or to obtain injunctive or other relief.
10. Release of
Claims. The Executive, on behalf of himself and anyone
claiming through him, including, but not limited to, his past, present and
future spouses, family members, relatives, agents, attorneys, representatives,
heirs, executors and administrators, and the predecessors, successors and
assigns of each of them, hereby releases and agrees not to xxx the Company or
any of its divisions, subsidiaries, affiliates, other related entities (whether
or not such entities are wholly owned) or any of the past, present or future
owners, officers, directors, administrators, trustees, fiduciaries, employees,
agents, attorneys or representatives thereof, or the predecessors, successors or
assigns of each of them (hereinafter jointly referred to as the “Released
Parties”), with respect to any and all known or unknown claims which the
Executive now has, has ever had, or may in the future have, against any of the
Released Parties for or related in any way to anything occurring from the
beginning of time up to and including the date on which he signs this Agreement,
including, without limiting the generality of the foregoing, any and all claims
which in any way result from, arise out of, or relate to, the Executive’s
employment by any of the Released Parties or the termination of such employment,
including, but not limited to, any and all claims for severance or termination
payments under any agreement
4
between
the Executive and any of the Released Parties including, without limitation, the
letter agreement dated April 29, 2005 and any amendment or supplement thereto
(the “Employment Agreement”), or any program or arrangement of any of the
Released Parties or any claims that could have been asserted by the Executive or
on his behalf against any of the Released Parties in any federal, state or local
court, commission, department or agency under any fair employment, contract or
tort law, or any other federal, state or local law, regulation or ordinance (as
in effect or amended from time to time), including, without limitation, the Age
Discrimination in Employment Act, Title VII of the Civil Rights Act of 1964, the
Employee Retirement Income Security Act of 1974, the Americans with Disabilities
Act, the Family and Medical Leave Act, or under any compensation, bonus,
severance, retirement or other benefit plan; provided, however, that nothing
contained in this Section 10 shall apply to, or release the Company from (a) any
obligation of the Company contained in this Agreement, (b) any vested or
accrued benefit under any plan or program of the Company in which the Executive
participates, (c) any obligation which the Company may have to indemnify the
Executive pursuant to its By-laws or (d) any obligation which the Company may
have to provide coverage to the Executive pursuant to its director and officer
insurance policy with respect to actions or omissions of the Executive during
his service as an officer of the Company. The Executive expressly
represents and warrants that he has not filed or had filed on his behalf any
claim against any of the Released Parties. The consideration offered
herein is accepted by the Executive as being in full accord, satisfaction,
compromise and settlement of any and all claims or potential claims, and the
Executive expressly agrees that the Executive is not entitled to, and shall not
receive, any further recovery of any kind from the Company or any of the other
Released Parties, and that in the event of any further proceedings whatsoever
based upon any matter released herein, neither the Company nor any of the other
Released Parties shall have any further monetary or other obligation of any kind
to the Executive, including any obligation for any costs, expenses or attorneys’
fees incurred by or on behalf of the Executive. The Executive agrees
that the Executive has no present or future right to employment with the Company
or any of the other Released Parties and that the Executive will not apply for
or otherwise seek employment with any of them.
11. Authority. The
Executive expressly represents and warrants that the Executive is the sole owner
of the actual and alleged claims, demands, rights, causes of action and other
matters that are released herein; that the same have not been transferred or
assigned or caused to be transferred or assigned to any other person, firm,
corporation or other legal entity; and that the Executive has the full right and
power to grant, execute and deliver the release, undertakings and agreements
contained herein.
12. Arbitration. Except
as provided in Section 9 hereof, any dispute or controversy between the Company
and the Executive, whether arising out of or relating to this Agreement, the
breach of this Agreement, or otherwise, shall be settled by arbitration in the
State of Nevada, administered by the American Arbitration Association, with any
such dispute or controversy arising under this Agreement being so administered
in accordance with its Commercial Rules then in effect, and judgment on the
award rendered by the arbitrator may be entered in any court having jurisdiction
thereof. The arbitrator shall have the authority to award any remedy
or relief that a court of competent jurisdiction could order or grant,
including,
5
without
limitation, the issuance of an injunction. However, either party may,
without inconsistency with this arbitration provision, apply to any court having
jurisdiction over such dispute or controversy and seek interim provisional,
injunctive or other equitable relief until the arbitration award is rendered or
the controversy is otherwise resolved. Except as necessary in court
proceedings to enforce this arbitration provision or an award rendered
hereunder, or to obtain interim relief, neither a party nor an arbitrator may
disclose the existence, content or results of any arbitration hereunder without
the prior written consent of the Company. The Company and the
Executive acknowledge that this Agreement evidences a transaction involving
interstate commerce. Notwithstanding any choice of law provision
included in this Agreement, the United States Federal Arbitration Act shall
govern the interpretation and enforcement of this arbitration
provision. The filing fee of the American Arbitration Association and
the fee of the arbitrator in any such arbitration shall be paid by the Company
and all other fees and expenses of such arbitration shall be borne by the party
which incurred such fees and expenses.
13. Successors; Binding
Agreement. This Agreement shall inure to the benefit of and be
enforceable by the Executive and by the Executive’s personal or legal
representatives, executors, administrators, successors, heirs, distributees,
devisees and legatees. In the event of the death of the Executive
while any amounts are payable to the Executive hereunder, all such amounts,
unless otherwise provided herein, shall be paid in accordance with the terms of
this Agreement to such person or persons designated in writing by the Executive
to receive such amounts or, if no person is so designated, to the Executive’s
estate.
14. Notices. All
notices and other communications required or permitted under this Agreement
shall be in writing and shall be deemed to have been duly given by a party
hereto when delivered personally or by overnight courier that guarantees next
day delivery or five days after deposit in the United States mail, postage
prepaid to the following address of the other party hereto (or to such other
address of such other party as shall be furnished in accordance
herewith):
If to the
Company, to:
0000 Xxxx
Xxxxxx Xxxxxx
Xxx
Xxxxx, Xxxxxx 00000
Attention: Corporate Senior Vice President, General Counsel and
Secretary
If to the
Executive, to:
Xxxxxxx
X. Xxxxxx
000 Xxxxx
Xxxxx
Xxxxxx,
Xxxxx Xxxxxxxx 00000
6
With a
copy to:
Xxxxxxx
X. Xxxxxxxxxx, Esq.
Xxxxxxxxxx
& Xxxxx LLP
00 Xxxx
00xx
Xxxxxx
00xx
Xxxxx
Xxx Xxxx,
Xxx Xxxx 00000
15. Governing
Law. The interpretation, construction and performance of this
Agreement shall be governed by and construed and enforced in accordance with the
internal laws of the State of Nevada without regard to the principle of
conflicts of laws.
16. Entire
Agreement. This Agreement constitutes the entire agreement and
understanding between the parties with respect to the subject matter hereof and
supersedes and preempts any prior understandings, agreements or representations
by or between the parties, written or oral, including, without limitation, the
Employment Agreement, which may have related in any manner to the subject matter
hereof.
17. Counterparts. This
Agreement may be executed in two counterparts, each of which shall be deemed to
be an original and both of which together shall constitute one and the same
instrument.
18. Miscellaneous. No
provision of this Agreement may be modified or waived unless such modification
or waiver is agreed to in writing and executed by the Executive and by a duly
authorized officer of the Company. No waiver by either party hereto
at any time of any breach by the other party hereto of, or 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. Failure by the Executive
or the Company to insist upon strict compliance with any provision of this
Agreement or to assert any right which the Executive or the Company may have
hereunder shall not be deemed to be a waiver of such provision or right or any
other provision or right of this Agreement.
19. No
Admission. Nothing in this Agreement is intended to, or shall
be construed as, an admission by the Company or any of the other Released
Parties that it violated any law, interfered with any right, breached any
obligation or otherwise engaged in any improper or illegal conduct with respect
to the Executive or otherwise. The Company, for itself and the other
Released Parties, hereby expressly denies any such illegal or wrongful
conduct
20. ACKNOWLEDGMENT BY
EXECUTIVE. BY EXECUTING THIS AGREEMENT, THE EXECUTIVE
EXPRESSLY ACKNOWLEDGES THAT THE EXECUTIVE HAS READ THIS AGREEMENT CAREFULLY,
THAT THE EXECUTIVE FULLY UNDERSTANDS ITS TERMS AND CONDITIONS, THAT THE
EXECUTIVE HAS BEEN ADVISED TO CONSULT WITH AN ATTORNEY PRIOR TO EXECUTING THIS
AGREEMENT, THAT THE EXECUTIVE HAS BEEN ADVISED THAT THE EXECUTIVE
7
HAS 21
DAYS WITHIN WHICH TO DECIDE WHETHER OR NOT TO EXECUTE THIS AGREEMENT AND THAT
THE EXECUTIVE INTENDS TO BE LEGALLY BOUND BY IT. DURING A PERIOD OF
SEVEN DAYS FOLLOWING THE DATE OF THE EXECUTIVE’S EXECUTION OF THIS AGREEMENT,
THE EXECUTIVE SHALL HAVE THE RIGHT TO REVOKE THE RELEASE CONTAINED IN
SECTION 10 OF THIS AGREEMENT OF CLAIMS UNDER THE AGE DISCRIMINATION IN
EMPLOYMENT ACT BY SERVING WITHIN SUCH PERIOD WRITTEN NOTICE OF
REVOCATION. IF THE EXECUTIVE EXERCISES THE EXECUTIVE’S RIGHTS UNDER
THE PRECEDING SENTENCE, THE EXECUTIVE SHALL HAVE NO RIGHT TO THE AMOUNT PAYABLE
TO THE EXECUTIVE PURSUANT TO SECTION 3 OF THIS AGREEMENT.
IN
WITNESS WHEREOF, the Company has caused this Agreement to be executed by a duly
authorized officer of the Company and the Executive has executed this Agreement
as of the day and year first above written.
By:
Xxxxxxx X. Xxxxxxx
President
and Chief Executive Officer
_____________________________
Xxxxxxx X. Xxxxxx
8
