EMPLOYMENT AGREEMENT - 1
Exhibit 10(g)
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT, dated the 12th day of
April, 1999, is by and between IDAHO POWER COMPANY, an
Idaho corporation with its principal place of business at 0000
Xxxx Xxxxx Xxxxxx, Xxxxx, Xxxxx (the "Company") and XXXXXXX
XXXXXXXX, an individual residing in Glendale, Arizona (the
"Executive").
WITNESSETH
WHEREAS, the Company desires to retain the services of
Executive as the Vice President of Human Resources, and Executive
desires to perform such services for the Company on the terms and
conditions set forth herein;
WHEREAS, Executive represents and Company acknowledges
that Executive is fully qualified, without the benefit of any
further training or experience, to perform the responsibilities
and duties, with commensurate authorities, of the position of
Vice President of Human Resources of the Company; and
WHEREAS, Executive agrees to devote her full time and
business effort, attention and energies to the diligent
performance of her duties hereunder;
NOW, THEREFORE, Company and Executive, intending to be
legally bound, covenant and agree as follows:
1. TERMS OF EMPLOYMENT
(a) Subject to satisfactory completion of pre-
employment drug testing and background verification,
the Company hereby agrees to employ the Executive, and
the Executive hereby agrees to serve the Company, on
the terms and conditions set forth herein.
(b) The employment of the Executive by the Company
shall be for a three (3) year term for the period
commencing on April 12, 1999 ("Date of Hire") and
continuing until April 11, 2002 (the "Term") unless
sooner terminated as provided in Section 4. Following
the completion of the Term, this Agreement will be
extended on a year to year basis unless and until the
Company gives notice to the Executive to terminate upon
not less than thirty days notice prior to the end of a
contract year or the Agreement is sooner terminated as
provided in Section 4. Under this Agreement, following
the completion of the Term, a Contract Year shall be a
calendar year except for the first calendar year which
will commence on April 12, 2002, and end on December
31, 2002. The second calendar year will commence on
January 1, 2003.
(c) The duties of Executive shall be as determined by
the Board, by executive management, including the
President and Chief Executive Officer and the Senior
Vice President - Administration and in accordance with
this Employment Agreement. Without limiting the
generality of the foregoing, Executive shall report to
and advise the Senior Vice President - Administration
regarding the Human Resource matters of the Company.
Executive agrees to devote her full time business
efforts, attention and energies to the diligent
performance of her duties hereunder and will not,
during the term hereof, accept employment from any
other person, firm, corporation, governmental agency or
other entity, provided, however, Executive may devote
reasonable amounts of time to activities of a public
service, civic, or not-for-profit nature. The
Executive shall perform and discharge, faithfully,
diligently, and to the best of her ability her duties
and responsibilities. The Executive shall adhere to
all policies and working rules of the Company, IDACORP
and applicable policies of Affiliates.
(d) Executive acknowledges and agrees that Executive
owes a fiduciary duty of loyalty, fidelity and
allegiance to and shall act at all times in the best
interests of the Company and to do no act which would
injure the Company's business, its interests, or its
reputation. It is agreed that any direct or indirect
interest in, connection with or benefit from any
outside activities, particularly commercial activities,
which interest might in any way adversely affect the
Company, or any of its Affiliates, involves a possible
conflict of interest. In keeping with Executive's
fiduciary duties to the Company, Executive agrees that
Executive shall not knowingly become involved in a
conflict of interest with the Company, or its
Affiliates, and upon discovery of any conflict, shall
not allow such a conflict to continue. Moreover,
Executive agrees that Executive shall disclose to the
Company's General Counsel any facts which might involve
such a conflict of interest. The Company and Executive
recognize that it is impossible to provide an
exhaustive list of actions or interests which
constitute a "conflict of interest", including the
definition set forth in the Company's Business Conduct
Guide or Ethics Policy. Moreover, the Company and
Executive recognize there are many borderline
situations. In some instances, full disclosure of
facts by Executive to the Company's General Counsel may
be all that is necessary to enable the Company or its
Affiliates to protect their interests. In others, if
no improper motivation appears to exist and the
interests of the Company, or its Affiliates have not
suffered, prompt elimination of the outside interest
will suffice. In still others, it may be necessary for
the Company to terminate the employment relationship
with Executive. The Company and Executive agree that
the Company's determination as to whether a conflict of
interest exists shall be conclusive. The Company
reserves the right to take such action as, in its
judgment, will end the conflict of interest.
2. COMPENSATION, EXPENSES AND OTHER PAYMENTS
Company shall pay, or provide, and Executive shall accept as
full consideration for her services to be rendered hereunder, and
as a reimbursement or provision for expenses incurred by her, the
following:
(a) Base Salary
An annual salary of $125,000, payable in twenty-six
(26) equal payments during each year of this Employment
Agreement, provided, however, that effective January 1 of each
year beginning in 2000, Executive's annual compensation may be
increased in accordance with the provisions for salary increases
set forth in subsection b. below. Executive's minimum total
compensation, which in no event may be reduced in whole or in
part, shall be the annual salary at the rate of compensation
received by Executive for any given period of time or at the time
of Executive's termination.
(b) Annual Adjustments - Base Salary
Annual performance reviews will determine annual salary
increases to which Executive will be entitled effective January
1, 2000, based upon Company's then current Executive Compensation
programs as approved by the Compensation Committee of the Board
of Directors.
(c) Incentive Compensation - Annual
(i) 1999
Executive shall participate in the 1999 Executive
Incentive plan. The Target Incentive percentage is 15 percent of
Executive's Base Salary with a potential maximum of 30 percent.
Because Executive will not have worked for the entire calendar
year 1999, Executive's award determination under the 1999
Executive Incentive Plan will be made on a pro-rata basis.
(ii) Term of Agreement
During the Term of this Agreement, unless sooner
terminated, Executive shall be entitled to participate in the
Company's Executive Incentive Plan and any successor Plans
thereto, in accordance with the terms thereof.
(d) Incentive Compensation - Long Term
(i) 1999
The Company implemented a Restricted Stock Plan in 1995
as an equity-based long-term incentive plan. A grant under the
Plan was made to all officers in January of 1999 with a three-
year restricted period beginning January 1, 1999 and ending
December 31, 2001, with a single financial goal of Cumulative
Earnings Per Share ("CEPS"). The restricted stock grant
percentage (a percentage of base salary converted into shares of
stock based upon the closing price for a share of IDACORP common
stock on December 31, 1998) for the position of Vice President -
Human Resources is a target percentage of 20 percent. However,
under the terms of the Plan, to be eligible to receive a final
share award, each officer must be employed as an officer during
the entire restricted period. Because Executive will not have
been employed during the entire restricted period, the Company
shall establish a Stock Equivalent equal to the grant Executive
would have received under the Plan for 1999 based upon a Base
Salary of $125,000 with a target percentage of 20 percent as
follows:
RESTRICTED STOCK PLAN EQUIVALENT
1999-2001 RESTRICTED PERIOD
XXXXXXX XXXXXXXX
1999 Grant Shares
Title Name Target Base Salary Min Target Max
V.P.-Human Xxxxxxx Xxxxxxxx 20% $125,000 345 691 1,036
Resources
Goal - 1999-2001 Restricted Period (Cumulative Earnings
Per Share) $6.90 $7.05 $7.20
Based upon IDACORP Common Stock closing price on December 31,
1998 of $36.1875.
Effective on the Date of Hire, the Company shall
establish, in Executive's name, a Stock Equivalent of 691 shares
of IDACORP Common Stock. Executive shall be entitled, during the
three-year restricted period, to receive dividend equivalents on
such Stock Equivalents, which is the right to be paid an amount
equal to any and all cash dividends declared on an equal number
of outstanding shares of IDACORP common stock (Dividend
Equivalent). Such Dividend Equivalent shall be paid to Executive
in cash at the same time cash dividends are paid to IDACORP
common shareholders. At the conclusion of the three-year
restricted period, Executive shall be paid in cash an amount
equal to the Stock Equivalents awarded to Executive under the
terms of the Restricted Stock Plan. This allocation shall be
unfunded, and the interest of Executive therein is unsecured and
shall be subject to the general creditors of the Company. The
payment of Stock Equivalents and Dividend Equivalents is subject
to the condition that Executive be, on the date of payment, in
the employ of the Company, except that Executive shall receive
payment if Executive's employment is terminated by reason of
death or Disability.
(ii) Term of Agreement
During the Term of this Agreement, unless sooner
terminated, Executive shall be entitled to participate in the
Company's Restricted Stock Plan and any successor Plans thereto
in accordance with the terms thereof.
(e) Expenses
Company agrees to reimburse Executive for ordinary and
necessary expenses incurred by her in performing services for
Company pursuant to the terms of this Employment Agreement and in
accordance with established Company policies.
(f) Other Payments
(i) Signing Bonus
On the date of hire (April 12, 1999) the Company will
pay Executive the sum of $15,000 as consideration for executing
this Employment Agreement.
(ii) Stock Buy Out
On or about December 31, 1999,
the Company will pay Executive, if Executive
is still employed by Company, the sum of
$15,000 for the opportunity Executive lost to
receive a restricted stock award of 400
shares at approximately $37.00 per share for
the calendar year 1999.
On or about December 31, 2000,
the Company will pay Executive, if Executive
is still employed by Company, the sum of
$7,500 for the opportunity Executive lost to
receive a restricted stock award for the year
2000.
3. OTHER BENEFIT MATTERS
(a) Flexible Time Off
Flexible Time Off (FTO) hours are accrued each bi-
weekly pay period. These hours provide compensated time off for
vacation, personal illness, illness of a family member or other
personal business. The accrual rate is based on length of
service. New employees are entitled to accrue at the rate of
three weeks per year. The Company will front load four weeks of
FTO for Executive, and Executive shall, beginning on the Date of
Hire, accrue FTO at the rate of 4.62 hours per bi-weekly pay
period (120 hours per year) with a maximum accumulation of 360
hours.
(b) Relocation. The following relocation expenses
will be paid by the Company:
(i) One preview trip with spouse and child, and one
house-hunting trip with family, for a combined
maximum of eight days allowed for the two trips.
One-time transportation for the entire family from
Glendale, Arizona to Boise, Idaho.
(ii) Moving of household goods, including two vehicles,
plus packing and unpacking. Boats, campers, bulk
foods, livestock, building materials, etc. are not
included. Storage of household goods not to
exceed 90 days.
(iii) Temporary housing as required for
up to 90 days, or a $4,500 moving allowance.
Family meal expenses will be paid during travel to
Boise and for a period of one week upon arrival in
Boise. Subsequent meal expenses are not covered.
Meal expenses do not include, tobacco, alcoholic
beverages, barbecue grills, propane, medicine, or
similar non-food related expenses.
(iv) Reimbursement of closing costs on the sale of
current residence and on the purchase of a
residence in Boise. Closing costs include
Realtor's fees, loan origination fees and related
closing expenses only. Gains and losses on the
sale (market value) of an existing home, loan
"points" paid, and similar non-closing related
costs are not covered. In the event Executive has
been unable to sell her home in Glendale within 90
days of putting it up for sale, the Company will
turn the property over to the company with which
it has home purchase arrangements.
(v) Expenses not specifically outlined above are not
covered by the Company. The employee's wages will
be "grossed up" for income taxes on all relocation
expenses which may impact the employees taxable
income.
(c) Retirement Benefits
Annual retirement benefits for officers are payable
under the Company Retirement Plan (a qualified defined benefit
pension plan for all regular employees) and under the Company
Security Plan for Senior Management Employees (a non-qualified
defined benefit plan for senior management employees).
Generally, total retirement benefits from the Retirement Plan and
Security Plan will range from 60 percent to 75 percent (after ten
to fifteen years of employment at a senior manager or officer
level) of participant's average salary plus short-term incentive
bonus in the highest five consecutive years in the last ten years
of employment before retirement with a normal retirement coming
at age 62. The principal element in the retirement benefits at
the Company is the Security Plan. Eligibility in the Security
Plan is limited to key employees that are designated by the
Company. The Company shall designate Executive as a participant
in the Security Plan upon the Date of Hire. Under the Security
Plan, the retirement percentage equals six percent for each year
of the first ten years and one percent for each year thereafter
with a maximum retirement percentage of 75 percent. Each
participant in the Security Plan is immediately vested. As
further consideration for entering into this Agreement Executive
shall, upon the Date of Hire, be credited with one year of
service under the Security Plan. As a result, at the completion
of the three year term of this Employment Agreement, Executive
will have a retirement percentage of 24 percent (6 percent for
each year of the three year term plus the 6 percent credit).
(d) Nothing contained herein shall affect the Company's
ability to alter, amend, modify, add to, delete or terminate any
of the Company's employee benefit plans, policies or programs;
provided, however, that the Company may take no such action which
would have the effect of reducing or eliminating any benefit,
right or feature which the Executive shall have as of the time of
such action unless the Company's action applies equally to all
executive officers participating in such plan, policy or program.
4. TERMINATION OF EMPLOYMENT
Unless terminated in accordance with the following
provisions of this Section 4, the Company shall continue to
employ Executive and Executive shall continue to work for the
Company, during the Term of this Agreement.
(a) Death or Disability
Executive's employment shall terminate
automatically upon Executive's death during the Term of
this Agreement. The Company shall be entitled to
terminate Executive's employment because of Executive's
Disability during the Term of this Agreement in
accordance with the Company's long-term disability plan
as in effect immediately prior to the Hire Date
("Disability").
(b) By the Company
(i) The Company may terminate Executive's
employment during the Term of this Agreement for
Cause or without Cause.
(ii) Cause shall mean (A) a material default
or other material breach by Executive of her
obligations under this Agreement, (B) failure by
Executive diligently and competently to perform
Executive's duties under this Agreement, or as
prescribed by the Company, (other than any such
failure resulting form Executive's incapacity due
to physical or mental illness or any such actual
or anticipated failure after the issuance of a
Notice of Termination for Good Reason by Executive
pursuant to Subsection 4(d) after a written demand
for substantial performance is delivered to
Executive by the Senior Vice President -
Administration, which demand specifically
identifies the manner in which Company management
believes that Executive has not substantially
performed Executive's duties) (C) misconduct,
dishonesty, insubordination, (D) any act by
Executive detrimental to the good will of the
Company or damaging to the Company's relationships
with its customers, suppliers or employees, (E)
Executive's final conviction of a felony or of a
misdemeanor involving moral turpitude, or (F)
Executive's involvement in a conflict of interest
as referenced in Subsection 1(d) for which the
Company makes a determination to terminate
Executive's employment.
(c) By Executive
(i) Executive may terminate employment for Good Reason
or, upon six months' prior written notice, without Good Reason.
(ii) "Good Reason" means the occurrence (without
Executive's express written consent) of any one of the following
acts by the Company, or failures by the Company to act, unless
such act or failure to act is corrected within thirty days of the
Notice of Termination given in respect thereof:
(A) the Company assigns any duties to Executive
which are materially inconsistent with Executive's position,
duties, offices, responsibilities or reporting requirements
immediately prior to a Change in Control; or
(B) the Company reduces Executive's base salary
as in effect immediately prior to a Change in Control; or
(C) the Company discontinues any bonus or other
compensation plan or any other benefit, stock ownership plan,
restructured stock plan, stock option plan, life insurance plan,
health plan, disability plan or similar plan (as the same existed
immediately prior to the Change in Control) in which Executive
participated or was eligible to participate in immediately prior
to the Change in Control and in lieu thereof does not make
available plans providing at least comparable benefits; or
(D) the Company takes action which adversely
affects Executive's participation in, or eligibility for, or
materially reduces Executive's benefits under, any of the plans
described in (C) above, or deprives Executive of any material
fringe benefit enjoyed by Executive immediately prior to the
Change in Control, or fails to provide Executive with the number
of paid vacation days to which Executive was entitled in
accordance with this Employment Agreement immediately prior to
the Change in Control; or
(E) the Company requires Executive to be based at
any office or location other than one within a 50-mile radius of
the office or location at which Executive was based immediately
prior to the Change in Control; or
(F) the Company purports to terminate Executive's
employment otherwise than as expressly permitted by this
Agreement; or
(G) any purported termination of Executive's
employment which is not effected pursuant to a Notice of
Termination satisfying the requirements of Subsection 4(d); for
purposes of this Agreement, no such purported termination shall
be effective.
Executive's right to terminate employment for Good
Reason shall not be affected by Executive's incapacity due to
physical or mental illness. Except as provided below,
Executive's continued employment shall not constitute consent to,
or a waiver of rights with respect to, any act or failure to act
constituting Good Reason hereunder. No such event described
hereunder shall constitute Good Reason unless Executive has given
written notice to the Company specifying the event relied upon
for such termination within two (2) months, (but in no event
beyond the Term of this Agreement) from the occurrence of such
event.
(d) Termination Procedures.
(i) Notice of Termination. Any purported termination
of Executive's employment (other than by reason of death) shall
be communicated by written Notice of Termination from one party
hereto to the other party hereto in accordance with Subsection
11(a) hereof. For purposes of this Agreement, a "Notice of
Termination" shall mean a notice which shall indicate the
specific termination provision in this Agreement relied upon and
shall set forth in reasonable detail the facts and circumstances
claimed to provide a basis for termination of Executive's em
ployment under the provision so indicated.
(A) Terminations for Cause. A Notice of Termi
nation for Cause shall specify in reasonable detail the specific
provision(s) in this Agreement and the event(s) and/or
performance matters relied upon as the basis for such
termination.
(B) Termination for Good Reason. A Notice of
Termination for Good Reason shall specify in reasonable detail
the specific provision(s) in this Agreement and the event(s)
relied upon as the basis for such termination.
(ii) Date of Termination. Except as otherwise provided
in Section 9 of this Agreement, "Date of Termination," with
respect to any purported termination of Executive's employment
during the Term of this Agreement, shall mean (A) if Executive's
employment is terminated for Disability, thirty (30) days after
Notice of Termination is given (provided that Executive shall not
have returned to the full-time performance of Executive's duties
during such thirty (30) day period), and (B) if Executive's
employment is terminated for any other reason, the date specified
in the Notice of Termination (which, in the case of a termination
by the Company for other than Cause, shall not be less than
thirty (30) days and, in the case of a termination by Executive
other than for Good Reason, shall not be less than six (6)
months, from the date such Notice of Termination is given).
(iii) No Waiver. The failure to set forth any fact
or circumstance in a Notice of Termination shall not constitute a
waiver of the right to assert, and shall not preclude the party
giving notice from asserting, such fact or circumstance in an
attempt to enforce any right under or provision of this
Agreement.
5. OBLIGATIONS OF THE COMPANY UPON TERMINATION
(a) By the Company other than for Cause, Death or
Disability, or by Executive for Good Reason.
(i) If, during the Term of this Agreement, the Company
terminates Executive's employment other than for Cause, death, or
Disability, or Executive terminates her employment for Good
Reason,
(A) the Company shall pay or provide to Executive
within 5 business days the Accrued Obligations (as that term is
defined in subsection 5(b) below);
(B) the Company shall continue to pay or provide
to Executive, commencing with the month in which the Date of
Termination shall have occurred and ending on the last day of the
Term of the Agreement (the "Severance Period") (paid in the same
form and at the same time as would have been paid had Executive's
employment not terminated), (1) Executive's Annual Base Salary
(at the same level that was being paid to Executive on the Date
of Termination or, if higher, at the time of the Change in
Control) and (2) an annual Incentive Compensation equal to the
highest earned by Executive over the three years preceding the
Date of Termination (or, if higher, over the three years
preceding the date of the Change in Control); and
(C) during the Severance Period, Executive shall
be entitled to all health and welfare benefits under the
Company's welfare benefit plans (within the meaning of Section
3(1) of the Employee Retirement Income Security Act of 1974, as
amended), as if Executive were still employed during such period,
at the same level of benefits and at the same dollar cost to
Executive as is available to all of the Company's officers
generally. If and to the extent that equivalent benefits shall
not be payable or provided under any such plan(s), the Company
shall pay or provide equivalent benefits on an individual basis.
The health and welfare benefits provided in accordance with this
subsection shall be reduced by any comparable benefits provided
by another employer.
(ii) In lieu of the benefits provided under 5(a)(i),
if, within the 36-month period following a Change in Control, the
Company terminates Executive's employment, other than for Cause,
death, or Disability, or Executive terminates her employment for
Good Reason,
(A) the Company shall pay or provide to Executive
the payments and benefits set forth in subparagraph 5(a)(i);
provided, however, that for purposes of subsections 5(a)(i)(B)
and (C), the Severance Period shall terminate 18 months following
the month in which the Date of Termination shall have occurred
rather than on the last day of the Term of the Agreement; and
(B) the Company shall pay Executive a severance
benefit, payable in eighteen equal monthly installments, equal to
eighteen months' base salary, plus the greater of (i) one and one-
half times the most recent annual incentive compensation or (ii)
one and one-half times the average annual incentive compensation
for the three prior years. In addition, Executive will be
entitled to continue participation in the Company's benefit plans
for an eighteen month period, provided, however, that such
benefit continuation will terminate upon Executive's coverage
under comparable plans. The payments and benefits continuation
provided to Executive by the Company pursuant to this subsection
will be in full and complete satisfaction (except as provided in
subsection (C) below) of any and all obligations owing to
Executive pursuant to this Agreement.
(C) It is the intention of the parties to this
Agreement that no severance benefits hereunder will be paid to
the extent that such benefits (either alone or when aggregated
with other benefits contingent on a Change in Control paid to or
for benefit of Executive) constitute "excess parachute payments"
within the meaning of Section 280G of the Internal Revenue Code
of 1986, as amended (the "Code"). Accordingly, under the
circumstances set forth below, severance benefits payable under
this Agreement shall be subject to the following ceiling
notwithstanding anything in this Agreement to the contrary: The
"aggregate present value" of severance benefits payable under
this Agreement which, together with all other payments to
Executive or for Executive's benefit, would be "parachute
payments" if their "aggregate present value" equaled or exceeded
300% of Executive's "base amount" shall in no event exceed 295%
of Executive's "base amount" (within those terms' meaning under
Section 280G of the Code).
(D) The determination of any reduction in the
payments under this Agreement or in payments made other than
pursuant to this Agreement, pursuant to the foregoing proviso,
including apportionment among specific payments and benefits,
shall be made by Executive in good faith, and such determination
shall be conclusive and binding on the Company. The Company
shall make the calculations referred to above within thirty days
following the termination of Executive's employment and shall
provide such calculations and the basis therefor to Executive
within such period. In the event the foregoing limit is
exceeded, Executive shall give notice to the Company within 20
days of Executive's receipt of such calculations and related
information of Executive's determination of the reduction of
benefits.
The payments and benefits provided pursuant to Subsection
(a) of Section 5 are intended as liquidated damages for a
termination of Executive's employment by the Company other than
for Cause, death, or Disability or for the actions of the Company
leading to a termination of Executive's employment by Executive
for Good Reason, and shall be the sole and exclusive remedy
therefor.
(ii) For purposes of this Agreement, "Change in
Control" shall mean the earlier of the following to occur:
(A) the dissolution or liquidation of the
Company;
(B) a reorganization, merger or consolidation of
the Company with one or more unrelated corporations, if
immediately after the consummation of such transaction less than
a majority of the board of directors of the surviving corporation
is comprised of Continuing Directors. Continuing Director shall
mean (i) each member of the Board of Directors of the Company,
while such person is a member of the Board, who is not the other
party to the transaction, an Affiliate or Associate (as these
terms are defined in the Exchange Act) of such other party to the
transaction, or a representative of such other party or of any
such Affiliate or Associate, and was a member of the Board
immediately prior to the initial public announcement of a
proposal relating to a reorganization, merger or consolidation
involving such other party, or an Affiliate or Associate of such
other party or (ii) any person who subsequently becomes a member
of the Board, while such person is a member of the Board, who is
not the other party to the transaction, or an Affiliate or
Associate thereof, or a representative of such other party to the
transaction or of any such Affiliate or Associate, if such
person's nomination for election to the Board is recommended or
approved by two-thirds of the Continuing Directors then in
office;
(C) the sale, exchange, transfer or other
disposition of shares of the common stock of the Company (or
shares of the stock of any person that is a shareholder of the
Company) in one or more transactions, related or unrelated, to
one or more Persons unrelated to the Company if, as a result of
such transactions, any Person (or any Person and its affiliates)
owns more than twenty percent (20%) of the voting power of the
outstanding common stock of the Company; or
(D) the sale of all or substantially all the
assets of the Company.
(iii) The Company is in the process of preparing
Severance Agreements for Company officers. To the extent that
the provision(s) of such Severance Agreements are more beneficial
to Executive than the corresponding provision(s) of this
Employment Agreement, Executive shall be entitled to be offered
and to execute the Severance Agreement.
(b) Death or Disability. If Executive's employment is
terminated by reason of Executive's death or Disability during
the Term of this Agreement, the Company shall pay to Executive
or, in the case of Executive's death, to Executive's designated
beneficiaries (or, if there is no such beneficiary, to
Executive's estate or legal representative) in a lump sum in cash
within 30 days after the Date of Termination, the sum of the
following amounts (the "Accrued Obligations"): (1) any portion of
Executive's Annual Base Salary through the Date of Termination
that has not yet been paid; (2) with respect to Incentive
Compensation (i) Incentive Compensation - Annual - set forth in
Subsection 2(c) of this Agreement, an amount representing the
Annual Incentive Compensation for the year that would otherwise
vest and/or become payable within the year in which the Date of
Termination occurs, computed by assuming that the amount of all
such Incentive Compensation would be equal to the amount of such
Incentive Compensation that Executive would have been eligible to
earn for such period, and multiplying that amount by a fraction,
the numerator of which is the number of days in such period
through the Date of Termination, and the denominator of which is
the total number of days in the relevant period and incentives
under the Plan shall be governed by the rules of the Plan; (ii)
Incentive Compensation - Long Term - set forth in Subsection 2(d)
of this Agreement, the shares will vest, if at all, at the
conclusion of the Restricted Period in accordance with the
provisions of the Plan with the number of shares reduced pro rata
based on the number of whole months having elapsed during the
Restricted Period before the death or disability; (3) any accrued
but unpaid Incentive Compensation and vacation pay; and the
Company shall have no further obligations under this Agreement,
except as specified in Section 6 below.
(c) By the Company for Cause or by Executive other than for
Good Reason. If Executive's employment is terminated by the
Company for Cause during the Term of this Agreement, the Company
shall pay Executive the Annual Base Salary through the Date of
Termination to the extent not yet paid, and the Company shall
have no further obligations under this Agreement, except as
specified in Section 6 below. If Executive voluntarily
terminates employment during the Term of this Agreement other
than for Good Reason, the Company shall pay the Accrued
Obligations to Executive in a lump sum in cash within 30 days of
the Date of Termination, and the Company shall have no further
obligations under this Agreement, except as specified in Section
6 below.
(d) Notwithstanding any provision herein to the contrary,
the Company shall not have any obligation to pay any amount or
provide any benefit under this Section 5 unless and until the
Executive executes a release of the Company, its affiliates and
related parties, in such form as the Company may reasonably
request, of all claims against the Company, its affiliates and
related parties relating to the Executive's employment and
termination thereof.
6. NON-EXCLUSIVITY OF RIGHTS
Except as provided in Sections 1 and 3 of this Agreement,
nothing in this Agreement shall prevent or limit Executive's
continuing or future participation in any plan, program, policy
or practice provided by the Company or any of its Affiliates for
which Executive may qualify, nor shall anything in this Agreement
limit or otherwise affect such rights as Executive may have under
any contract or agreement with the Company or any of its
Affiliates. Vested benefits and other amounts that Executive is
otherwise entitled to receive under any other plan, policy,
practice, or program of, or any contract or agreement with, the
Company or any of its Affiliates on or after the Date of
Termination shall be payable in accordance with the terms of each
such plan, policy, practice, program, contract, or agreement, as
the case may be, except as explicitly modified by this Agreement.
7. FULL SETTLEMENT
The Company's obligation to make the payments provided for
in, and otherwise to perform its obligations under, this
Agreement shall not be affected by any set-off, counterclaim,
recoupment, defense or other claim, right or action that the
Company may have against Executive or others. In no event shall
Executive be obligated to seek other employment or take any other
action by way of mitigation of the amounts payable to Executive
under any of the provisions of this Agreement and the amount of
any payment or benefit provided for in this Agreement shall not
be reduced by any compensation earned by Executive as the result
of employment by another employer, by retirement benefits, by
offset against any amount claimed to be owed by Executive to the
Company, or otherwise.
8. NON-COMPETITION PROVISION AND CONFIDENTIAL INFORMATION
(a) Without prior written consent of the Company, during
the period of Executive's employment with the Company and for 12
months thereafter, Executive shall not, as a shareholder,
officer, director, partner, consultant, or otherwise, engage
directly or indirectly in any business or enterprise which is "in
competition" with the Company or its successors or assigns or
Affiliates thereof or undertake any action which would be
injurious to the Company or its Affiliates or assist the
Company's or its Affiliates' competitors; provided, however, that
Executive's ownership of less than five percent of the issued and
outstanding voting securities of a publicly traded company shall
not be deemed to constitute such competition. A business or
enterprise is deemed to be "in competition" if it is engaged in
any material business in any state of the United States in which
the Company or any of its Affiliates operates at the "applicable
time." "Applicable time" means (i) during the period of
Executive's employment hereunder, the specific date, and (ii)
after the Date of Termination, the Date of Termination.
(b) Executive shall hold in a fiduciary capacity for the
benefit of the Company all secret or confidential information,
knowledge or data relating to the Company or any of its
Affiliates and their respective businesses that Executive obtains
during Executive's employment by the Company or any of its
Affiliates and that is not public knowledge (other than as a
result of Executive's violation of this Section 8) ("Confidential
Information"). Executive shall not communicate, divulge, or
disseminate Confidential Information at any time during or after
Executive's employment with the Company, except with the prior
written consent of the Company or as otherwise required by law or
legal process. In no event shall any asserted violation of the
provisions of this Section 8 constitute a basis for deferring or
withholding any amounts otherwise payable to Executive under this
Agreement.
(c) (i) Executive acknowledges that if Executive shall
breach or threaten to breach any provision of this Section 8, the
damages to the Company and its Affiliates may be substantial,
although difficult to ascertain, and money damages will not
afford the Company and its Affiliates an adequate remedy.
Therefore, if the provisions of this Section 8 are violated, in
whole or in part, the Company and its Affiliates shall be
entitled to specific performance and injunctive relief, without
prejudice to other remedies the Company and/or its Affiliates may
have at law or in equity.
(ii) If any term or provision of this Section 8, or the
application thereof to any person or circumstances shall, to any
extent, be invalid or unenforceable, the remainder of this
Section 8, or the application of such term or provision to
persons or circumstances other than those as to which it is held
invalid or unenforceable, shall not be affected thereby, and each
term and provision of this Section 8 shall be valid and
enforceable to the fullest extent permitted by law. Moreover, if
a court of competent jurisdiction deems any provision hereof to
be too broad in time, scope, or area, it is expressly agreed that
such provision shall be reformed to the maximum degree that would
not render it unenforceable.]
9. SUCCESSORS; BINDING AGREEMENT
The Company shall 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 assume expressly and agree to perform this Agreement in the
same manner and to the same extent that the Company would be
required to perform. As used in this Agreement, the "Company"
shall mean the Company as hereinbefore defined and any successor
to its business and/or assets as aforesaid which assumes and
agrees to perform this Agreement by operation of law, or
otherwise.
10. ARBITRATION
Any dispute or controversy between the parties relating to
this Agreement (except any dispute relating to Section 8 hereof)
or relating to or arising out of Executive's employment with the
Company, shall be settled by binding arbitration in the City of
Boise, State of Idaho, pursuant to the governing rules of the
American Arbitration Association and shall be subject to the
provisions of the Uniform Arbitration Act, Idaho Code, Sections 7-
901, et. seq. Judgment upon the award may be entered in any
court of competent jurisdiction. Notwithstanding anything herein
to the contrary, if any dispute arises between the parties under
Section 8 hereof, or if the Company makes any claim under
paragraph 6, the Company shall not be required to arbitrate such
dispute or claim but shall have the right to institute judicial
proceedings in any court of competent jurisdiction with respect
to such dispute or claim. If such judicial proceedings are
instituted, the parties agree that such proceedings shall not be
stayed or delayed pending the outcome of any arbitration
proceedings hereunder.
11. MISCELLANEOUS
(a) Any notice or other communication required or permitted
under this Agreement shall be effective only if it is in writing
and delivered personally or sent by certified mail, postage
prepaid, addressed as follows:
If to the Company: J. XxXxxx Xxxx
Senior Vice President -
Administration
Idaho Power Company
P. O. Xxx 00
Xxxxx, Xxxxx 00000
If to Executive: Xxxxxxx Xxxxxxxx
(Address to be provided at a
later date)
or to such other address as either party may designate by notice
to the other, and shall be deemed to have been given upon
receipt.
(b) This Agreement constitutes the entire agreement between
the parties hereto with respect to Executive's employment by the
Company, and supersedes and is in full substitution for any and
all prior understandings or agreements with respect to
Executive's employment with the Company.
(c) This Agreement may be amended only by an instrument in
writing signed by the parties hereto, and any provision hereof
may be waived only by an instrument in writing signed by the
party or parties against whom or which enforcement of such waiver
is sought. The failure of either party hereto at any time to
require the performance by the other party hereto of any
provision hereof shall in no way affect the full right to require
such performance at any time thereafter, nor shall the waiver by
either party hereto of a breach of any provision hereof be taken
or held to be a waiver of any succeeding breach of such
provision or a waiver of the provision itself or a waiver of any
other provision of this Agreement.
(d) This Agreement is binding on and is for the benefit of
the parties hereto and their respective successors, heirs,
executors, administrators and other legal representatives.
Neither this Agreement nor any right or obligation hereunder may
be assigned by the Company (except to an Affiliate) or by
Executive.
(e) If any provision of this Agreement, or portion thereof,
is so broad, in scope or duration, so as to be unenforceable,
such provision or portion thereof shall be interpreted to be only
so broad as is enforceable.
(f) This Agreement shall be governed by and construed in
accordance with the laws of the State of Idaho.
(g) This Agreement may be executed in several counterparts,
each of which shall be deemed an original, but all of which shall
constitute one and the same instrument.
(h) Executive represents and warrants that Executive is not
party to any agreement which would prohibit Executive from
entering into this Agreement or performing fully Executive's
obligations hereunder.
(i) The obligations of Executive set forth in Section 8
represent independent covenants by which Executive is and will
remain bound notwithstanding any breach by the Company, and shall
survive the termination of this Agreement.
IN WITNESS WHEREOF, the Company and Executive have
executed this Agreement as of the date first written above.
IDAHO POWER COMPANY
By:_________________________________
Senior Vice President -
Administration
XXXXXXX XXXXXXXX
_________________________________
Name:______________________________
