EXHIBIT 10.02
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NSP 1999 SENIOR EXECUTIVE SEVERANCE POLICY
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INTRODUCTION
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Northern States Power Company, a Minnesota corporation ("NSP") and New
Century Energies, Inc., a Delaware corporation ("NCE") have entered into an
Agreement and Plan of Merger dated as of March 24, 1999 (the "Merger
Agreement"), whereby the NSP and NCE organizations will engage in a
merger-of-equals transaction (the "Combination"). The Board of Directors of NSP
recognizes that the pendency of the Combination, and the inevitable adjustments
that will occur during the transition period following the Combination, may
result in the loss or distraction of employees of the Corporation and its
Subsidiaries to the detriment of the Corporation and its shareholders.
The Board considers the avoidance of such loss and distraction to be
essential to protecting and enhancing the best interests of the Corporation and
its shareholders. The Board also believes that during the pendency of the
Combination and the transition period thereafter, the Board should be able to
receive and rely on disinterested service from employees without concern that
employees might be distracted or concerned by personal uncertainties and risks.
In addition, the Board believes that it is consistent with the Corporation's
employment practices and policies and in the best interests of the Corporation
and its shareholders to treat fairly its employees whose employment terminates
in connection with or following the Combination.
Accordingly, the Board has determined that appropriate steps should be taken to
assure the Corporation of the continued employment and attention and dedication
to duty of its employees and to seek to ensure the availability of their
continued service, notwithstanding the Combination.
Therefore, in order to fulfill the above purposes, the following plan has been
developed and is hereby adopted.
ARTICLE I
ESTABLISHMENT OF PLAN
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1.
As of the Effective Date, the Corporation hereby establishes a separation
compensation plan known as the NSP 1999 Senior Executive Severance Policy, as
set forth in this document.
ARTICLE II
DEFINITIONS
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2.
As used herein the following words and phrases shall have the following
respective meanings unless the context clearly indicates otherwise. (In
addition, certain terms used in Section 4.5 of this Plan are defined in Section
4.5(c).)
(a) Annual Incentive Award. The highest amount a Participant received as an
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annual cash incentive award in any of the three calendar years prior to a
termination of employment entitling the Participant to a Separation Benefit.
(b) Annual Salary. The Participant's regular annual base salary immediately
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prior to his or her termination of employment, including compensation converted
to other benefits under a flexible pay arrangement maintained by the Corporation
or deferred pursuant to a written plan or agreement with the Corporation, but
excluding overtime pay, allowances, premium pay, compensation paid or payable
under any Corporation long-term or short-term incentive plan or any similar
payment.
(c) Board. The Board of Directors of NSP.
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(d) Code. The Internal Revenue Code of 1986, as amended from time to time.
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(e) Committee. The Corporate Management Committee of the Board or any
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successor to such committee.
(f) Corporation. NSP and any successor thereto.
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(g) Date of the Combination. The Effective Time, as defined in the Merger
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Agreement.
(h) Date of Termination. The date on which a Participant ceases to be an
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Employee.
(i) Effective Date. The date of the Merger Agreement.
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(j) Employee. Any full-time, regular-benefit, non-bargaining employee of an
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Employer. The term shall exclude all individuals employed as independent
contractors, temporary employees, other benefit employees, non-benefit
employees, leased employees, even if it is subsequently determined that such
classification is incorrect.
(k) Employer. The Corporation or a Subsidiary which has adopted the Plan
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pursuant to Article V hereof.
(l) Long-Term Incentive Award. The highest aggregate Value granted to a
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Participant in the form of Stock Awards during any of the three calendar years
prior to a termination of employment entitling the Participant to a Separation
Benefit.
(m) Multiple. For each Participant, the number set forth opposite the
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Participant's name on Schedule 1 hereto.
(n) Participant. An individual who is designated as such pursuant to
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Section 3.1.
(o) Plan. The NSP 1999 Senior Executive Severance Policy.
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(p) Release Agreement. An agreement substantially in the form set forth in
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Exhibit A to this Plan, with such amendments as the Committee may determine to
be necessary in order for such agreement to constitute a valid release by the
Participant in question of all claims described therein.
(q) Separation Benefits. The payments and benefits described in Section 4.3
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that are provided to qualifying Participants under the Plan.
(r) Separation Period. The period beginning on a Participant's Date of
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Termination and ending upon expiration of a number of years equal to the
Participant's Multiple.
(s) Stock Award. An award of stock options, stock appreciation rights
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(other than in conjunction with a stock option) or restricted stock or a
performance award, in each case granted pursuant to the Corporation's Long-Term
Incentive Award Plan or any predecessor, successor or similar plan of the
Corporation.
(t) Subsidiary. Any corporation in which the Corporation, directly or
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indirectly, holds a majority of the voting power of such corporation's
outstanding shares of capital stock.
(u) Target Annual Incentive. The Annual Incentive Award that the
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Participant would have received for the year in which his or her Date of
Termination occurs, if the target goals had been achieved.
(v) Value. The Value of a Stock Award shall be the dollar value of such
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award at the time of grant, as determined by the Committee in connection with
the grant of such Stock Award; it being understood that the Committee's
practice, as of the date of adoption of this Plan, is to determine (i) the value
of a Stock Award that is a stock option, stock appreciation right or similar
right that derives its value from the appreciation of the value of equity
securities using a modified version of the Black-Scholes option valuation
method, and (ii) the value of other Stock Awards based upon the fair market
value of the underlying equity securities.
ARTICLE III
ELIGIBILITY
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3.
3.1 Participation. Each of the individuals named on Schedule 1 hereto shall
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be a Participant in the Plan. Schedule 1 may be amended by the Board from
time to time to add individuals as Participants.
3.2 Duration of Participation. A Participant shall only cease to be a
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Participant in the Plan as a result of an amendment or termination of the Plan
complying with Article VII of the Plan, or when he ceases to be an Employee of
any Employer, unless, at the time he ceases to be an Employee, such Participant
is entitled to payment of a Separation Benefit as provided in the Plan or there
has been an event or occurrence described in Section 4.2(a) which would enable
the Participant to terminate his employment and receive a Separation Benefit. A
Participant entitled to payment of a Separation Benefit or any other amounts
under the Plan shall remain a Participant in the Plan until the full amount of
the Separation Benefit and any other amounts payable under the Plan have been
paid to the Participant.
ARTICLE IV
SEPARATION BENEFITS
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4.1 Right to Separation Benefit. A Participant shall be entitled to receive
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Separation Benefits in accordance with Section 4.3 if the Participant
ceases to be an Employee for any reason specified in Section 4.2(a).
4.2 Termination of Employment.
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(a) Terminations Which Give Rise to Separation Benefits Under This Plan.
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Except as set forth in subsection (b) below, a Participant shall be entitled to
Separation Benefits if, at any time before the third anniversary of the Date of
the Combination:
(i) the Participant ceases to be an Employee by action of the Employer or
any of its affiliates (excluding any transfer to another Employer);
(ii) the Participant's Annual Salary is reduced below the higher of (x) the
amount in effect on the Effective Date and (y) the highest amount in effect at
any time thereafter, and the Participant ceases to be an Employee by his or her
own action within 130 days after the occurrence of such reduction;
(iii) the Participant's duties and responsibilities are materially and
adversely diminished in comparison to the duties and responsibilities enjoyed by
the Participant on the Effective Date, and the Participant ceases to be an
Employee by his or her own action within 130 days after the occurrence after
such reduction;
(iv) the program of incentive compensation and retirement and welfare
benefits offered to the Participant (determined in the aggregate) is materially
and adversely diminished in comparison to the program of benefits enjoyed by the
Participant on the Effective Date, and the Participant ceases to be an Employee
by his or her own action within 130 days after the occurrence after such
reduction; or
(v) an Employer or any affiliate of an Employer sells or otherwise
distributes or disposes of the subsidiary, branch or other business unit in
which the Participant was employed before such sale, distribution or disposition
and the requirements of subsection (b)(iv) of this Section 4.2 are not met, and
the Participant ceases to be an Employee upon or within 130 days after such
sale, distribution or disposition.
With respect to a termination by the Participant pursuant to clause (ii), (iii),
(iv), or (v) of this Section 4.2(a), such termination shall be effective if and
only if the Participant has given written notice to his or her Employer of his
or her intent to terminate for such reason (stating the event(s) relied upon for
such termination and the provisions of this Section 4.2(a) relied upon) within
90 days of the date on which the event(s) first occurred, and the Employer or an
affiliate of the Employer, as the case may be, has failed to remedy such event
within the 30 day period following receipt of such notice.
(b) Terminations Which Do Not Give Rise to Separation Benefits Under This
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Plan. If a Participant's employment is terminated for Cause, death, disability,
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retirement, or a qualified sale of business (as those terms are defined
below), or voluntarily by the Participant in the absence of an event described
in subsection (a)(ii), (iii) or (iv) of this Section 4.2, the Participant shall
not be entitled to Separation Benefits under the Plan.
(i) A termination for disability shall have occurred where a Participant is
terminated because of an illness or injury and the Participant has become
eligible to receive long-term disability benefits under, or would have become so
eligible if such Participant were covered by, the Corporation's long-term
disability plan, as it exists at the time of termination of employment.
(ii) A termination by retirement shall have occurred where a Participant's
termination is due to his voluntary late, normal or early retirement under a
pension plan sponsored by his Employer or its affiliates, as defined in such
plan.
(iii) A termination for Cause shall have occurred where a Participant is
terminated because of:
(A) the willful and continued failure of the Participant to perform
substantially the Participant's duties with the Corporation or one of its
affiliates (other than any such failure resulting from incapacity due to
physical or mental illness), after a written demand for substantial performance
is delivered to the Participant by the Board or an elected officer of the
Corporation which specifically identifies the manner in which the Board or the
elected officer believes that the Participant has not substantially performed
the Participant's duties, or
(B) the willful engaging by the Participant in illegal conduct or gross
misconduct which is materially and demonstrably injurious to the Corporation.
For purposes of this provision, no act or failure to act, on the part of the
Participant, shall be considered "willful" unless it is done, or omitted to be
done, by the Participant in bad faith or without reasonable belief that the
Participant's action or omission was in the best interests of the Corporation.
Any act, or failure to act, based upon authority given pursuant to a resolution
duly adopted by the Board, or upon the advice of counsel for the Corporation,
shall be conclusively presumed to be done, or omitted to be done, by the
Participant in good faith and in the best interests of the Corporation.
(iv) A termination due to a qualified
sale of business shall have occurred where an Employer or an affiliate of an
Employer has sold, distributed or otherwise disposed of the subsidiary, branch
or other business unit in which the Participant was employed before such sale,
distribution or disposition and the Participant has been offered employment with
the purchaser of such subsidiary, branch or other business unit or the
corporation or other entity which is the owner thereof on substantially the same
terms and conditions under which he worked for the Employer (including, without
limitation, duties and responsibilities, and the aggregate of the Participant's
base salary and program of benefits). Such terms and conditions shall also
include, without limitation, a legally binding agreement or plan covering such
Participant, providing that upon a qualifying termination of employment with the
subsidiary, branch or business unit (or the corporation or other entity which is
the owner thereof) or any successor thereto of the kind described in Article VI
of this Plan, at any time before the third anniversary of the Date of the
Combination, the Participant's employer or any successor will pay to each such
former Participant an amount equal to the separation benefit and other benefits
that such former Participant would have received under the Plan had he been a
Participant at the time of such termination. For purposes of this subsection,
the new employer plan or agreement must treat service with any Employer
(irrespective of whether the Employer was an affiliate of the Corporation or the
Employee was a Participant at the time of such service) and the new employer as
continuous service for purposes of calculating separation benefits.
4.3 Separation Benefits.
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(a) If a Participant's employment is terminated in circumstances entitling
him to a separation benefit as provided in Section 4.2(a), and the Participant
executes and does not revoke a Release Agreement, the Participant's Employer
shall pay such Participant, within fifteen days of the Date of Termination, or
if later, upon the date such Release Agreement becomes irrevocable, a cash lump
sum as set forth in subsection (b) below and the continued benefits set forth in
subsection (c) below, subject to Section 4.6 below. For purposes of
determining the benefits set forth in subsection (b) and (c), if the termination
of the Participant's employment is based upon a reduction of the Participant's
Annual Salary or benefits as described in subsection (ii) or (iii) of Section
4.2, such reduction shall be ignored.
(b) The cash lump sum referred to in Section 4.3(a) shall equal the
aggregate of the following amounts:
(i) the sum of (1) the Participant's Annual Salary through the Date of
Termination to the extent not theretofore paid, (2) the product of (x) the
Target Annual Incentive plus the Long-Term Incentive and (y) a fraction, the
numerator of which is the number of days in such year through the Date of
Termination, and the denominator of which is 365, and (3) any compensation
previously deferred by the Participant (together with any accrued interest or
earnings thereon) and any accrued vacation pay, in each case to the extent not
theretofore paid and in full satisfaction of the rights of the Participant
thereto;
(ii) an amount equal to the product of (1) the Participant's Multiple and
(2) the sum of (x) the Participant's Annual Salary, (y) the higher of the Target
Annual Incentive or the Annual Incentive Award and (z) the Long-Term Incentive
Award;
(iii) an amount equal to the difference between (a) the actuarial equivalent
of the benefit under the Corporation's qualified defined benefit retirement plan
(the "Retirement Plan") and any excess or supplemental retirement plans in which
the Participant participates (together, the "SERP") which the Participant would
receive if his or her employment continued during the Separation Period,
assuming that the Participant's compensation during the Separation Period would
have been equal to his or her compensation as in effect immediately before the
termination or, if higher, on the Effective Date, and (b) the actuarial
equivalent of the Participant's actual benefit (paid or payable), if any, under
the Retirement Plan and the SERP as of the Date of Termination. The actuarial
assumptions used for purposes of determining actuarial equivalence shall be no
less favorable to the Participant than the most favorable of those in effect
under the Retirement Plan and the SERP on the Date of Termination and the
Effective Date; and
(iv) the sum of the additional contributions (other than pre-tax salary
deferral contributions by the Participant) that would have been made or credited
by the Company to the Participant's accounts under each qualified defined
contribution plan and non-qualified supplemental executive savings plan, if any,
that covered the Participant on the date the termination of employment occurred,
determined by assuming that:
(A) The Participant's employment had continued for the Separation Period;
(B) The Participant's rate of compensation being recognized by each plan
immediately prior to the Date of Termination had continued in effect during the
Separation Period;
(C) In the case of matching contributions, the Participant's rate of pre-tax
salary deferral contributions in effect for the last plan year beginning prior
to the Date of Termination had remained in effect throughout the Separation
Period; and
(D) In the case of discretionary contributions by the Company, the Company
continued to make such contributions during the Separation Period at the rate
that applied to the most recent plan year that ended prior to the Date of
Termination.
(c) The continued benefits referred to above shall be as follows:
(i) During the Separation Period, the Participant and his family shall be
provided with medical, dental and life insurance benefits as if the
Participant's employment had not been terminated; provided, however, that if the
Participant becomes reemployed with another employer and is eligible to
receive medical or other welfare benefits under another employer-provided plan,
the medical and other welfare benefits described herein shall be secondary to
those provided under such other plan during such applicable period of
eligibility; and for purposes of determining eligibility (but not the time of
commencement of benefits) of the Participant for retiree medical, dental and
life insurance benefits under the Corporation's plans, practices, programs and
policies, the Participant shall be considered to have remained employed during
the Separation Period and to have retired on the last day of such period;
(ii) The Corporation shall, at its sole expense as incurred, provide the
Participant with outplacement services the scope and provider of which shall be
selected by the Participant in his or her sole discretion (but at a cost to the
Corporation of not more than $30,000);
(iii) The Corporation shall continue to provide the Participant with
financial planning counseling benefits through the second anniversary of the
Date of Termination, on the same terms and conditions as were in effect
immediately before the termination or, if more favorable, on the Effective Date;
and
(iv) The Corporation shall transfer to the Participant, at no cost to the
Participant, the title to the company car being used by the Participant as of
the Date of Termination.
To the extent any benefits described in this Section 4.3(c) cannot be provided
pursuant to the appropriate plan or program maintained for Employees, the
Employer shall provide such benefits outside such plan or program at no
additional cost (including without limitation tax cost) to the Participant.
Notwithstanding the foregoing, if a group insurance carrier refuses to provide
the coverage described in this Section 4.3(c) under its contract issued to the
Company, or if the Company reasonably determines that the coverage required
under this Section 4.3(c) would cause a welfare plan sponsored by the Company to
violate any provision of the Code prohibiting discrimination in favor of highly
compensated employees or key employees, the Company will use its best efforts to
obtain for the Participant an individual insurance policy providing comparable
coverage. However, if the Company determines in good faith that comparable
coverage cannot be obtained for less than two times the premium or premium
equivalent for such coverage under the Company welfare plan or plans, the
Company's sole obligation under this Section 4.3(c) with respect to that
coverage will be limited to paying the Participant a monthly amount equal to two
times the monthly premium or premium equivalent for that coverage under the
Company's plans.
4.4 Other Benefits Payable. The cash lump sum and continuing benefits
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described in Section 4.3 above shall be payable in addition to, and not in lieu
of, all other accrued or vested or earned but deferred compensation, rights,
options or other benefits which may be owed to a Participant upon or following
termination, including but not limited to accrued vacation or sick pay, amounts
or benefits payable under any bonus or other compensation plans, stock option
plan, stock ownership plan, stock purchase plan, life insurance plan, health
plan, disability plan or similar or successor plan, except as provided in
Section 4.6 below.
4.5 Certain Additional Payments or Reductions in Payments.
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(a) Gross-Up or Reduction. (i) In the event it shall be determined that
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any Payment would be subject to the Excise Tax, then except to the extent
provided below in this Section 4.5(a), the Participant shall be entitled to
receive an additional payment (a "Gross-Up Payment") in an amount such that
after payment by the Participant of all taxes (including any interest or
penalties imposed with respect to such taxes), including, without limitation,
any income taxes (and any interest and penalties imposed with respect thereto)
and Excise Tax imposed upon the Gross-Up Payment, the Participant retains an
amount of the Gross-Up Payment equal to the Excise Tax imposed upon the
Payments.
(ii) Notwithstanding Section 4.5(a)(i), if it shall be determined that the
Participant is entitled to a Gross-Up Payment pursuant to Section 4.5(a)(i)
(before application of Sections 4.5(a)(ii), (iii) and (iv)), but that the
Parachute Value of the Payments does not exceed 110% of the Safe Harbor Amount,
then no Gross-Up Payment shall be made to the Participant and the Separation
Payments, in the aggregate, shall be reduced (but not below zero) such that the
Parachute Value of all Payments equals the Safe Harbor Amount, determined in
such a manner as to maximize the Value of all Payments actually made to the
Participant.
(iii) If it shall be determined that the Participant is entitled to a
Gross-Up Payment pursuant to Section 4.5(a)(i) and the Payments are not reduced
pursuant to Section 4.5(a)(ii), but one or more of the Payments that is
determined to be subject to the Excise Tax consists of the accelerated vesting
of a Stock Award, then the Gross-Up Payment shall be reduced by the portion
thereof that is allocable to such accelerated vesting. The allocation of the
Gross-Up Payment to the individual Payments shall be made on a pro-rata basis
using the methodology set forth in Q&A 38 of Proposed Treasury Regulations
Section 1.280G-1 or any comparable provision of any successor proposed or final
regulations under Sections 280G and 4999 of the Code.
(iv) If it shall be determined that a Participant is entitled to receive a
Gross-Up Payment after application of Sections 4.5(a)(i), (ii) and (iii), then a
determination shall be made whether it is possible to reduce the Separation
Payments (but not below zero) such that the Net After-Tax Amount of all the
Payments (taking into account such reduction) exceeds the Net After-Tax Amount
of all the Payments (not taking into account such reduction) plus the Gross-Up
Payment. If such a reduction is possible, then no Gross-Up Payment shall be
made and the aggregate Separation Payments shall be so reduced (but not below
zero); provided, that the reduction shall be made in such a manner as to
maximize the Value of all Payments actually made to the Participant.
(b) Procedures. (i) All determinations required to be made under Section
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4.5(a), including whether and when a Gross-Up Payment or a reduction in
Separation Payments is required, the amount of such Gross-Up Payment or
reduction, and the assumptions to be utilized in arriving at such determination,
shall be made by a nationally recognized public accounting firm selected by
the Corporation (the "Accounting Firm"), which shall provide detailed supporting
calculations both to the Corporation and the Participant within 15 business days
of the receipt of notice from the Participant that there has been a Payment, or
such earlier time as is requested by the Corporation; provided, that if the
Accounting Firm determines that a Participant's Separation Payments are required
to be reduced pursuant to Section 4.5(a)(ii) or (iv), and there is a choice to
be made as to which Separation Payments shall be reduced consistent with
maximizing the Value of all Payments to the Participant, the Participant shall
be permitted to make such choice, and the Accounting Firm shall supply the
Participant with all necessary information to make an informed choice. All fees
and expenses of the Accounting Firm shall be borne solely by the Corporation.
Any Gross-Up Payment, as determined pursuant to this Section 4.5, shall be paid
by the Corporation to the Participant within five days of the receipt of the
Accounting Firm's determination. Any determination by the Accounting Firm shall
be binding upon the Corporation and the Participant.
(ii) As a result of the uncertainty in the application of Section 4999 of
the Code at the time of the initial determination by the Accounting Firm
hereunder, it is possible that amounts will have been paid or distributed by the
Corporation to or for the benefit of a Participant pursuant to this Plan
which should not have been so paid or distributed ("Overpayment") or that
additional amounts which will have not been paid or distributed by the
Corporation to or for the benefit of a Participant pursuant to this Plan could
have been so paid or distributed ("Underpayment"), in each case, consistent with
the requirements of this Section 4.5. In the event that the Accounting Firm,
based upon the assertion of a deficiency by the Internal Revenue Service against
either the Corporation or the Participant which the Accounting Firm believes has
a high probability of success determines that an Overpayment has been made, any
such Overpayment paid or distributed by the Corporation to or for the benefit of
a Participant shall be treated for all purposes as a loan to the Participant
which the Participant shall repay to the Corporation together with interest at
the applicable federal rate provided for in Section 7872(f)(2) of the Code;
provided, however, that no such loan shall be deemed to have been made and no
amount shall be payable by a Participant to the Corporation if and to the extent
such deemed loan and payment would not either reduce the amount on which the
Participant is subject to tax under Section 1 and Section 4999 of the Code or
generate a refund of such taxes. In the event that the Accounting Firm, based
upon controlling precedent or substantial authority, determines that an
Underpayment has occurred, any such Underpayment shall be promptly paid by the
Corporation to or for the benefit of the Participant together with interest at
the applicable federal rate provided for in Section 7872(f)(2) of the Code.
(iii) The Participant shall notify the Corporation in writing of any claim
by the Internal Revenue Service that, if successful, could require the payment
by the Corporation of the Gross-Up Payment. Such notification shall be given as
soon as practicable but no later than ten business days after the Participant is
informed in writing of such claim and shall apprise the Corporation of the
nature of such claim and the date on which such claim is requested to be paid.
The Participant shall not pay such claim prior to the expiration of the 30-day
period following the date on which it gives such notice to the Corporation (or
such shorter period ending on the date that any payment of taxes with respect to
such claim is due). If the Corporation notifies the Participant in writing
prior to the expiration of such period that it desires to contest such claim,
the Participant shall:
(A) give the Corporation any information reasonably requested by the
Corporation relating to such claim,
(B) take such action in connection with contesting such claim as
the Corporation shall reasonably request in writing from time to time,
including, without limitation, accepting legal representation with respect to
such claim by an attorney reasonably selected by the Corporation,
(C) cooperate with the Corporation in good faith in order to contest such
claim effectively, and
(D) permit the Corporation to participate in any proceedings relating to
such claim;
provided, however, that the Corporation shall bear and pay directly all costs
and expenses (including additional interest and penalties) incurred in
connection with such contest and shall indemnify and hold the Participant
harmless, on an after-tax basis, for 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. Without limitation on the
foregoing provisions of this Section 4.5(b), the Corporation shall control all
proceedings taken in connection with such contest and, at its sole option, may
pursue or forgo any and all administrative appeals, proceedings, hearings and
conferences with the taxing authority in respect of such claim and may, at its
sole option, either direct the Participant to pay the tax claimed and sue for a
refund or contest the claim in any permissible manner, and the Participant
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 Corporation shall determine; provided, however, that if the
Corporation directs the Participant to pay such claim and sue for a refund, the
Corporation shall advance the amount of such payment to the Participant, on an
interest-free basis and shall indemnify and hold the Participant harmless, on an
after-tax basis, from any Excise Tax or income tax (including interest or
penalties with respect thereto) imposed with respect to such advance or with
respect to any imputed income with respect to such advance; and further provided
that any extension of the statute of limitations relating to payment of taxes
for the taxable year of the Participant with respect to which such contested
amount is claimed to be due is limited solely to such contested amount.
Furthermore, the Corporation's control of the contest shall be limited to issues
with respect to which a Gross-Up Payment would be payable hereunder and the
Participant shall 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.
(iv) If, after the receipt by the Participant of an amount advanced by the
Corporation pursuant to Section 4.5(b)(iii), the Participant becomes entitled to
receive any refund with respect to such claim, the Participant shall
(subject to the Corporation's complying with the requirements of Section
4.5(b)(iii)) promptly pay to the Corporation the amount of such refund (together
with any interest paid or credited thereon after taxes applicable thereto). If,
after the receipt by the Participant of an amount advanced by the Corporation
pursuant to Section 4.5(b)(iii), a determination is made that the Participant
shall not be entitled to any refund with respect to such claim and the
Corporation does not notify the Participant in writing of its intent to contest
such denial of refund prior to the expiration of 30 days after such
determination, then such advance shall be forgiven and shall not be required to
be repaid and the amount of such advance shall offset, to the extent thereof,
the amount of the Gross-Up Payment required to be paid.
(c) Definitions. The following terms shall have the following meanings for
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purposes of this Section 4.5.
(i) "Excise Tax" shall mean the excise tax imposed by Section 4999 of the
Code, together with any interest or penalties imposed with respect to such
excise tax.
(ii) The "Net After-Tax Amount" of a Payment shall mean the Value of a
Payment net of all taxes imposed on a Participant with respect thereto under
Sections 1 and 4999 of the Code and applicable state and local law, determined
by applying the highest marginal rates that are expected to apply to the
Participant's taxable income for the taxable year in which the Payment is made.
(iii) "Parachute Value" of a Payment shall mean the present value as of the
date of the Combination of the portion of such Payment that constitutes a
"parachute payment" under Section 280G(b)(2), as determined by the Accounting
Firm for purposes of determining whether and to what extent the Excise Tax will
apply to such Payment.
(iv) A "Payment" shall mean any payment or distribution in the nature of
compensation to or for the benefit of a Participant, whether paid or payable
pursuant to this Plan or otherwise.
(v) The "Safe Harbor Amount" means the maximum Parachute Value of all
Payments that a Participant can receive without any Payments being subject to
the Excise Tax.
(vi) A "Separation Payment" shall mean a Payment paid or payable pursuant to
this Plan (disregarding this Section 4.5).
(vii) "Value" of a Payment shall mean the economic present value of a
Payment as of the date of the Combination, as determined by the Accounting Firm
using the discount rate required by Section 280G(d)(4) of the Code.
ARTICLE V
PARTICIPATING EMPLOYERS
-----------------------
This Plan may be adopted by any Subsidiary of the Corporation. Upon such
adoption, the Subsidiary shall become an Employer hereunder and the provisions
of the Plan shall be fully applicable to the Employees of that Subsidiary who
are Participants pursuant to Section 3.1.
ARTICLE VI
SUCCESSOR TO CORPORATION
------------------------
This Plan shall bind any successor of the Corporation, its assets or its
businesses (whether direct or indirect, by purchase, merger, consolidation or
otherwise), in the same manner and to the same extent that the Corporation would
be obligated under this Plan if no succession had taken place.
In the case of any transaction in which a successor would not by the foregoing
provision or by operation of law be bound by this Plan, the Corporation shall
require such successor expressly and unconditionally to assume and agree to
perform the Corporation's obligations under this Plan, in the same manner and to
the same extent that the Corporation would be required to perform if no such
succession had taken place. The term "Corporation," as used in this Plan, shall
mean the Corporation as hereinbefore defined and any successor or assignee to
the business or assets which by reason hereof becomes bound by this Plan.
ARTICLE VII
DURATION, AMENDMENT AND TERMINATION
-----------------------------------
7.1 Duration. If the Combination has not occurred, this Plan shall expire
--- --------
five years from the Effective Date, unless extended for an additional period or
periods by resolution adopted by the Board. If the Combination occurs, this
Plan shall continue in full force and effect and shall not terminate or expire
until after all Participants who become entitled to any payments hereunder shall
have received such payments in full and all payments and adjustments
required to be made pursuant to Section 4.5 have been made.
7.2 Amendment. Except as provided in Section 7.1, the Plan shall not be
--- ---------
subject to amendment, change, substitution, deletion, revocation or termination
in any respect which adversely affects the rights of Participants; provided,
that this Plan may be amended if and to the extent necessary to permit the use
of the "pooling of interests" accounting method with respect to the Combination
(assuming that such accounting method is otherwise applicable to the
Combination).
7.3 Form of Amendment. The form of any amendment of the Plan shall be a
--- -----------------
written instrument signed by a duly authorized officer or officers of the
Corporation, certifying that the amendment has been approved by the Board.
ARTICLE VIII
MISCELLANEOUS
-------------
8.1 Indemnification. If a Participant institutes any legal action in
--- ---------------
seeking to obtain or enforce, or is required to defend in any legal action the
validity or enforceability of, any right or benefit provided by this Plan, the
Corporation or the Employer will pay for all reasonable legal fees and expenses
incurred (as incurred) by such Participant, regardless of the outcome of such
action.
8.2 Employment Status. This Plan does not constitute a contract of
--- ------------------
employment or impose on the Participant or the Participant's Employer any
obligation to retain the Participant as an Employee, to change the status of the
Participant's employment, or to change the Corporation's policies or those of
its Subsidiaries regarding termination of employment.
8.3 Claim Procedure. If an Employee or former Employee makes a written
--- ---------------
request alleging a right to receive benefits under this Plan or alleging a right
to receive an adjustment in benefits being paid under the Plan, the Corporation
shall treat it as a claim for benefit. All claims for benefit under the Plan
shall be sent to the Human Resources Department of the Corporation and must be
received within 30 days after termination of employment. If the Corporation
determines that any individual who has claimed a right to receive benefits, or
different benefits, under the Plan is not entitled to receive all or any part of
the benefits claimed, it will inform the claimant in writing of its
determination and the reasons therefor in terms calculated to be understood by
the claimant. The notice will be sent within 90 days of the claim unless the
Corporation determines additional time, not exceeding 90 days, is needed. The
notice shall make specific reference to the pertinent Plan provisions on which
the denial is based, and describe any additional material or information is
necessary. Such notice shall, in addition, inform the claimant what procedure
the claimant should follow to take advantage of the review procedures set forth
below in the event the claimant desires to contest the denial of the claim. The
claimant may within 90 days thereafter submit in writing to the Corporation a
notice that the claimant contests the denial of his or her claim by the
Corporation and desires a further review. The Corporation shall within 60 days
thereafter review the claim and authorize the claimant to appear personally and
review pertinent documents and submit issues and comments relating to the claim
to the persons responsible for making the determination on behalf of the
Corporation. The Corporation will render its final decision with specific
reasons therefor in writing and will transmit it to the claimant within 60 days
of the written request for review, unless the Corporation determines additional
time, not exceeding 60 days, is needed, and so notifies the Participant. If the
Corporation fails to respond to a claim filed in accordance with the foregoing
within 60 days or any such extended period, the Corporation shall be deemed to
have denied the claim.
8.4 Validity and Severability. The invalidity or unenforceability of any
--- -------------------------
provision of the Plan shall not affect the validity or enforceability of any
other provision of the Plan, which shall remain in full force and effect, and
any prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
8.5 Governing Law. The validity, interpretation, construction and
--- --------------
performance of the Plan shall in all respects be governed by the laws of
Minnesota, without reference to principles of conflict of law, except to the
extent pre-empted by federal law.
8.6 Withholding. The Corporation may withhold from any and all amounts
--- -----------
payable under this Plan all federal, state, local and foreign taxes that may be
required to be withheld by applicable laws or regulations.
SCHEDULE I
PARTICIPANTS
NAME MULTIPLE
---- --------
Xxxxx X. Xxxxxxxx 2.5
Xxxxxx X. XxXxxxxx 2.5
Xxxx X. Xxxxxx 2.5
Xxxxx X. Xxxxxx 2.5
Xxxx X. Xxxxxxx 2.5
Xxxxxxx X. Xxxxxx 2.5
Xxxx X. Xxxx 2.5
Xxxxx X. Xxxxxxxx 2.5
Xxxxx X. Xxxxxx 2.5
Xxxxxx X. Xxxxxxxxxx 2.5
Xxxxx X. Xxxxxxx 2.5
Xxxxxx X. Xxxxxx 2.5
Xxxxx X. Xxxxx 2.5
Xxxx X. Xxxxxx 2.5
Xxxx X. Xxxxx, Xx. 2.5
Xxxxx X. Xxxxxx 2.5
EXHIBIT A
FORM OF RELEASE AGREEMENT
THIS AGREEMENT is entered into this ___ day of ________, 19___ by and
between Northern States Power Company (the "Company"), a Minnesota corporation,
and ________________ (the "Participant").
WHEREAS, the Participant has become entitled to receive Separation Benefits
under the NSP 1999 Senior Executive Severance Policy (the "Policy") on the
condition that the Participant enter into this Release Agreement; and
NOW, THEREFORE, in consideration of the Covenant Consideration, the
Participant, intending to be legally bound, agrees as follows:
1. ACKNOWLEDGMENT.
--------------
(a) The Participant understands and agrees that, in addition to the
Participant's below-described exposure to the Company's Confidential Information
or Trade Secrets, the Participant may, in his capacity as an employee, at times
meet with the Company's customers and suppliers, and that as a consequence of
using and associating with the Company's name, goodwill, and professional
reputation, the Participant will be in a position to develop personal and
professional relationships with the Company's past, current, and prospective
customers and suppliers. The Participant further acknowledges that during the
course and as a result of employment by the Company, the Participant may be
provided certain specialized training or know-how. The Participant understands
and agrees that this goodwill and reputation, as well as the Participant's
knowledge of Confidential Information or Trade Secrets and specialized training
and know-how, could be used unfairly in competition against the Company.
(b) Accordingly, the Participant agrees that during the period of one year
after the Date of Termination (the "Covenant Period"), the Participant shall
not:
(i) Directly or indirectly solicit, service, contract with, or
otherwise engage any past (one (1) year prior), existing or prospective
customer, client, or account who then has a relationship with the Company for
current or prospective business on behalf of an individual or entity that is
engaged in a Competing Business (as defined below), or on the Participant's own
behalf for a Competing Business; the term "Competing Business" meaning for
purposes of this clause (i) a business or enterprise that is engaged in the
business of generation, purchase, transmission, distribution, or sale of
electricity, or in the purchase, transmission, distribution, sale or
transportation of natural gas within the States of Colorado, Kansas, Minnesota,
New Mexico, North Dakota, Oklahoma, South Dakota, Texas, Wisconsin or Wyoming;
and the Participant and the Company agree that this provision is reasonably
enforced with reference to the foregoing states to the extent applicable to such
relationships with the Company;
(ii) Cause or attempt to cause any existing or prospective customer, client,
or account, who then has a relationship with the Company for current or
prospective business, to divert, terminate, limit or in any manner modify, or
fail to enter into any actual or potential business relationship with the
Company; and the Participant and the Company agree that this clause (ii) is
reasonably enforced with reference to any geographic area applicable to such
relationships with the Company; and
(iii) Directly or indirectly solicit, employ or conspire with others to
employ any of the Company's employees; the term "employ" for purposes of this
clause (iii) meaning to enter into an arrangement for services as a full-time or
part-time employee, independent contractor, consultant, agent or otherwise; and
the Participant and the Company agree that this clause (iii) is reasonably
enforced as to any geographic area.
(c) The Participant further agrees to inform any new employer or other
person or entity with whom the Participant enters into a business relationship
during the Covenant Period, before accepting such employment or entering into
such a business relationship, of the existence of this Agreement and give such
employer, person or other entity a copy of this Agreement.
2. RETURN OF PROPERTY. The Participant agrees that upon the Date of
--------------------
Termination, the originals and all copies of any and all documents (including
computer data, diskettes, programs, or printouts) that contain any customer
information, financial information, product information, or other information
that in any way relates to the Company, its products or services, its clients,
its suppliers, or other aspects of its business that are in the Participant's
possession shall be immediately returned to the Company. The Participant
further agrees to not retain any summary of such information.
3. CONFIDENTIAL INFORMATION/TRADE SECRETS.
----------------------------------------
(a) The Participant acknowledges that during the course and as a result of
his or her employment, the Participant may receive or otherwise have access to,
or contribute to the production of, Confidential Information or Trade Secrets.
"Confidential Information or Trade Secrets" means information that is
proprietary to or in the unique knowledge of the Company (including information
discovered or developed in whole or in part by the Participant); the Company's
business methods and practices; or information that derives independent economic
value, actual or potential, from not being generally known to, and not being
readily ascertainable by proper means by, other persons who can obtain economic
value from its disclosure or use, and is the subject of efforts that are
reasonable under the circumstances to maintain its secrecy. It includes, among
other things, strategies, procedures, manuals, confidential reports, lists of
clients, customers, suppliers, past, current or possible future products or
services, and information concerning research, development, accounting,
marketing, selling or leases and the prices or charges paid by the Company's
customers to the Company, or by the Company to its suppliers. The Participant
acknowledges his continuing agreement to abide by the terms of the NSP Code of
Conduct.
(b) The Participant further acknowledges and appreciates that any
Confidential Information or Trade Secret constitutes a valuable asset of the
Company and that the Company intends any such information to remain secret and
confidential. The Participant therefore specifically agrees that except to the
extent required by the Participant's duties to the Company or as permitted by
the express written consent of the Board of Directors, the Participant shall
never, either during employment with the Company or at any time thereafter,
directly or indirectly use, discuss or disclose any Confidential Information or
Trade Secrets of the Company or otherwise use such information to his or her own
or a third party's benefit.
4. CONSIDERATION. The Participant and the Company agree that the above
-------------
provisions of this Agreement are reasonable and necessary for the protection of
the Company and its business. In exchange for the Participant's agreement to be
bound by the terms of this Agreement, the Company has provided the Participant
the Separation Benefits under the Policy. The Participant accepts and
acknowledges the adequacy of such consideration for this Agreement.
5. REMEDIES FOR BREACH. The Participant acknowledges that a breach of the
-------------------
above provisions of this Agreement will cause the Company irreparable harm that
would not be fully remedied by monetary damages. Accordingly, the Participant
agrees that the Company shall, in addition to the requirement to return the
Covenant Consideration to the Company and any relief afforded by law, be
entitled to injunctive relief. The Participant agrees that both damages at law
and injunctive relief shall be proper modes of relief and are not to be
considered alternative remedies.
6. RELEASE.
-------
(a) In consideration of the Separation Benefits, the Participant does
hereby fully and completely release and waive any and all claims, complaints,
causes of action or demands of whatever kind which the Participant has or may
have against the Company and its predecessors, successors, subsidiaries and
affiliates and all officers, employees and agents of those persons and companies
arising out of any actions, conduct, decisions, behavior or events occurring to
the date of his or her execution of this Release of which the Participant is or
has been made aware or has been reasonably put on notice.
(b) The Participant understands and accepts that this release specifically
covers but is not limited to any and all claims, complaints, causes of action or
demands of whatever kind which the Participant has or may have against the
above-referenced released parties relating in any way to the terms, conditions
and circumstances of his or her employment to date, whether based on statutory,
regulatory or common law claims for employment discrimination, including but not
limited to race, color, sex, age or reprisal discrimination, arising under the
Federal Civil Rights Act of 1964, as amended, Executive Order 11246, the Age
Discrimination in Employment Act, as amended, the Minnesota Human Rights Act or
any other administrative order, federal or state statute or local ordinance,
wrongful discharge, breach of contract, breach of any express or implied
promise, misrepresentation, fraud, reprisal, retaliation, breach of public
policy, infliction of emotional distress, defamation, promissory estoppel,
invasion of privacy, negligence, or any other theory, whether legal or
equitable; except that this release will not impair any existing rights the
Participant may have under any presently existing pension, retirement or
employee benefit plan of the Company.
(c) By signing below, the Participant acknowledges that he or she fully
understands and accepts the terms of this release, and represents and agrees
that his or her signature is freely, voluntarily and knowingly given and that he
or she has been provided a full opportunity to review and reflect on the terms
of this release for at least [21] [45] days and to seek the advice of legal
counsel of his or her choice, which advice the Participant has been encouraged
to obtain.
7. THE PARTICIPANT'S ACKNOWLEDGMENT OF REVIEW; RIGHT TO REVOKE.
------------------------------------------------------------------
(a) The Participant represents that the Participant has carefully read
and fully understands all provisions of this Agreement and that the Participant
has had a full opportunity to review this Agreement before signing and to have
all the terms of this Agreement explained to him or her by counsel.
(b) This Agreement may be revoked by the Participant by written notice given
to [INSERT ADDRESS] within 15 business days after being signed by the
Participant.
8. GENERAL PROVISIONS. The Participant and the Company acknowledge and
------------------
agree as follows:
(a) This Agreement contains the entire understanding of the parties with
regard to all matters contained herein. There are no other agreements,
conditions, or representations, oral or written, express or implied, with regard
to such matters;
(b) This Agreement may be amended or modified only by a writing signed by
both parties;
(c) Waiver by either the Company or the Participant of a breach of any
provision, term or condition hereof shall not be deemed or construed as a
further or continuing waiver thereof or a waiver of any breach of any other
provision, term or condition of this Agreement;
(d) This Agreement shall inure to the benefit of and be binding upon the
Company and its successors and assigns. 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 expressly
to assume and agree to perform this Agreement in the same manner and to the same
extent that the Company would have been required to perform it if no such
succession had taken place. As used in this Agreement, "the Company" shall mean
the Company and its affiliates or assigns and any such successor that assumes
and agrees to perform this Agreement, by operation of law or otherwise. No
assignment of this Agreement shall be made by the Participant, and any purported
assignment shall be null and void;
(e) If any court finds any provision or part of this Agreement to be
unreasonable, in whole or in part, such provision shall be deemed and construed
to be reduced to the maximum duration, scope or subject matter allowable under
applicable law. Any invalidation of any provision or part of this Agreement
will not invalidate any other part of this Agreement;
(f) This Agreement will be construed and enforced in accordance with the
laws and legal principles of the State of Minnesota. The Participant consents
to the jurisdiction of the Minnesota courts for the enforcement of this
Agreement; and
(g) This Agreement may be executed in one or more counterparts, each of
which shall be deemed to be an original, but all of which together will
constitute one and the same instrument.
THIS AGREEMENT IS INTENDED TO BE A LEGALLY BINDING DOCUMENT FULLY ENFORCEABLE IN
ACCORDANCE WITH ITS TERMS. IF IN DOUBT, SEEK COMPETENT LEGAL ADVICE BEFORE
SIGNING.
_________________________________________________ ________________________
(The Participant) Date
NORTHERN STATES POWER COMPANY
By_______________________________________________ ________________________
Date
Its_________________________________________
The Participant acknowledges that he or she has received a copy of this
Agreement.
