CHANGE IN CONTROL
SEVERANCE AGREEMENT
THIS AGREEMENT between PORTLAND GENERAL CORPORATION an
Oregon
corporation ("PGC"), and ("Executive"), dated this
of
November, 1994.
WITNESSETH:
WHEREAS, PGC wishes to attract and retain well-qualified
executives and
key personnel to PGC and its family of companies, and to assure
both itself
and the Executive of continuity of management in the event of a
change in
control;
NOW, THEREFORE, it is hereby agreed by and between the
parties as
follows:
1. Operating Agreement.
1.1 For purposes of determining the "Term of this
Agreement", this
Agreement shall commence as of October 1, 1994, and shall
continue in effect
through September 30, 1997; provided, however, that commencing
on October 1,
1997, and each third anniversary of the commencement date of this
Agreement
thereafter, the term of this Agreement shall automatically be
extended for
three (3) additional years unless, not later than June 1 of the
year of any
such third anniversary, the either party shall have given notice
that it does
not wish to extend this Agreement; and provided further, that if
a Change in
Control, as defined in Paragraph 2, of the Company, as defined in
Paragraph
1.2, shall have occurred during the original or an extended term
of this
Agreement, this Agreement shall continue in effect for a period
of not less
than thirty-six (36) months beyond the month in which such Change
in Control
occurred. Notwithstanding anything provided herein to the
contrary, the term
of this Agreement shall not extend beyond the end of the month in
which
Executive shall attain "normal retirement age" under the
provisions of the
Portland General Corporation Pension Plan then in effect.
1.2 The term "Company" shall include Portland
General Corporation
("PGC"), Portland General Electric Company ("PGE"), and any
present or future
parent or subsidiary corporation of PGC or PGE (as defined in
Sections 425(e)
and (f) of the Internal Revenue Code of 1986, as amended) or any
successor to
such corporations.
2. Change in Control. For purposes of this
Agreement, a "Change
in Control" shall occur if during the Term of this Agreement:
(a) Any "person," as such term is used in Sections
13(d) and 14(d)
of the Securities Exchange Act of 1934, as
amended (the
"Exchange Act") (other than PGC or PGE, any
trustee or other
fiduciary holding securities under an employee
benefit plan of
PGC or PGE, or any
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corporation owned, directly or indirectly, by
the stockholders
of PGC or PGE in substantially the same
proportions as their
ownership of stock of PGC or PGE), is or becomes
the
"beneficial owner" (as defined in Rule 13d-3
under the
Exchange Act), directly or indirectly, of
securities
representing thirty percent (30%) or more of the
combined
voting power of PGC's or PGE's then outstanding
voting
securities;
(b) During any period of two consecutive years (not
including any
period prior to the execution of this
Agreement), individuals
who at the beginning of such period constitute
the Board of
Directors of Portland General Corporation ("PGC
Board"), and
any new director (other than a director
designated by a person
who has entered into an agreement with PGC to
effect a
transaction described in clause (a), (c) or (d)
of this
Paragraph) whose election by the PGC Board or
nomination for
election by PGC's stockholders was approved by a
vote of at
least two-thirds (2/3) of the directors then
still in office
who either were directors as of the beginning of
the period or
whose election or nomination for election was
previously so
approved, cease for any reason to constitute at
least a
majority thereof;
(c) The stockholders of PGC or PGE approve a merger
or
consolidation of PGC or PGE with any other
corporation, other
than (a) a merger or consolidation which would
result in the
voting securities of PGC or PGE outstanding
immediately prior
thereto continuing to represent (either by
remaining
outstanding or by being converted into voting
securities of
the surviving entity) more than 80% of the
combined voting
power of the voting securities of PGC or PGE or
such surviving
entity outstanding immediately after such merger
or
consolidation or (b) a merger or consolidation
effected to
implement a recapitalization of PGC or PGE (or
similar
transaction) in which no "person" (as
hereinabove defined)
acquires more than thirty percent (30%) of the
combined voting
power of PGC's or PGE's then outstanding
securities; or
(d) The stockholders of PGC or PGE approve a plan of
complete
liquidation of PGC or PGE or an agreement for
the sale or
disposition by PGC or PGE of all or
substantially all of PGC's
or PGE's assets.
3. Employment. PGC hereby agrees to continue the
Executive in the
Company's employ, and the Executive hereby agrees to remain in
the employ of
the Company, for the period commencing on the date on which there
occurs a
Change in Control, and ending upon the earlier of (i) three (3)
years
thereafter; or (ii) the date upon which the Executive retires
(the "Employment
Period"). During the Employment Period the
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Executive shall exercise such authority and perform such
executive duties as are
commensurate with the authority being exercised and duties being
performed by
the Executive immediately prior to the commencement of the
Employment Period,
which services shall be performed at the location where the
Executive was
employed immediately prior to the commencement of the Employment
Period or at
such other location as the Company may reasonably require;
provided, that the
Executive shall not be required to accept a location or travel
which is
unreasonable in light of the Executive's personal circumstances.
The Executive
agrees that during the Employment Period the Executive shall
devote the
Executive's full business time exclusively to the Executive's
duties as
described herein and perform such duties faithfully and
efficiently.
4. Compensation, Compensation Plans, Perquisites.
During the
Employment Period, the Executive shall be compensated as follows:
(a) The Executive shall receive an annual salary
which is not less
than the Executive's annual salary immediately
prior to the
commencement of the Employment Period, with the
opportunity for
increases, from time to time thereafter, which
are in
accordance with the Company's regular practices.
(b) The Executive shall be eligible to participate
on a reasonable
basis in bonus, stock option, restricted stock
and other
incentive compensation plans which provide
opportunities to
receive compensation that are equivalent to the
opportunities
provided under any such plans in which the
Executive was
participating immediately prior to the
commencement of the
Employment Period.
(c) The Executive shall be entitled to receive
employee benefits
(including, but not limited to, medical,
insurance and split-
dollar life insurance benefits) and perquisites
which are
equivalent to the employee benefits and
perquisites to which
the Executive was entitled immediately prior to
the
commencement of the Employment Period.
5. Termination. The term "Termination" shall mean
termination of
the employment of the Executive with the Company prior to the end
of the
Employment Period (i) by the Company for any reason other than
death, Disability
or Cause (as described below); or (ii) by resignation of the
Executive upon the
occurrence of either of the following events:
(a) A significant detrimental change in the nature
or scope of the
Executive's authorities or duties from those
described in
Paragraph 3, a reduction in total compensation
or customary
increases from that provided in Paragraph 4, or
the breach by
the Company of any other provision of
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this Agreement; or
(b) A reasonable determination by the Executive
that, as a result
of a Change in Control and a change in
circumstances
thereafter significantly affecting the
Executive's position,
the Executive is unable to exercise the
authorities, powers,
functions or duties attached to the Executive's
position as
contemplated by Paragraph 3 of this Agreement.
The term "Disability" means that as a result of the Executive's
incapacity due
to physical or mental illness, the Executive shall have been
absent from the
full-time performance of the Executive's duties with the Company
for six (6)
consecutive months, and within thirty (30) days after written
notice of
Company's intent to terminate employment is given the Executive
shall not have
returned to the full-time performance of the Executive's duties.
The term "Cause" means gross misconduct or willful and material
breach of this
Agreement by the Executive. The Executive shall not be deemed to
have been
terminated for Cause unless and until there shall have been
delivered to the
Executive a copy of a resolution duly adopted by the affirmative
vote of not
less than three-quarters of the entire membership of the PGC
Board, excluding
the Executive if Executive sits on the PGC Board, at a meeting of
the PGC Board
of which the Executive has been given reasonable notice and at
which the
Executive, together with the Executive's counsel, have been given
the
opportunity to be heard by the Board, finding that in the good
faith opinion of
the PGC Board the Executive was guilty of conduct constituting
gross misconduct
or willful and material breach of this Agreement and specifying
the particulars
thereof in detail.
6. Termination Payments. In the event of a
Termination, PGC and
the Company shall pay to the Executive and provide him with the
following:
(a) The Company shall pay the Executive's full base
salary through
the date of termination plus all other amounts
to which the
Executive is entitled under any Company
compensation plan at
the time of termination.
(b) PGC shall pay the Executive a lump sum severance
payment equal
to 2.99 multiplied by the Executive's "base
amount" as defined
in Section 280G of the Internal Revenue Code of
1986, as
amended (the "Code"), reduced as hereafter
provided. The base
amount shall be determined in accordance with
temporary or
final regulations, if any, promulgated under
Section 280G and
based upon the advice of tax counsel selected by
PGC's
independent auditors and acceptable to the
Executive. The
severance payment shall be reduced by the amount
of any other
payment or the value of any benefit the
Executive receives in
connection with a Change in Control (whether
pursuant to the
terms of this Agreement or any other plan,
agreement or
arrangement with the
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Company, any person whose actions result in a
Change in
Control, or any person affiliated with the
Company or such
person) unless (i) Executive has waived receipt
of such
payment or benefit; (ii) in the opinion of tax
counsel
selected by PGC's independent auditors and
acceptable to the
Executive such other payment or benefit does not
constitute a
"parachute payment" within the meaning of
Section 280G(b)(2)
of the Code; or (iii) in the opinion of such tax
counsel the
sum of the severance payment, plus all other
payments or
benefits constituting "parachute payments"
within the meaning
of Section 280G(b)(2) of the Code are reasonable
compensation
for services actually rendered, within the
meaning of Section
280G(b)(4) of the Code or are otherwise not
subject to
disallowance as deduction by reason of Section
280G of the
Code. The value of any non-cash benefit or any
deferred
payment or benefit shall be determined by PGC's
independent
auditors in accordance with the principles of
Sections
280G(d)(3) and (4) of the Code.
(c) To the extent that the Executive or any of the
Executive's
dependent's may be covered under the terms of
any medical and
dental plans of the Company for active employees
immediately
prior to the Termination, the Company will
provide the
Executive and those dependents with equivalent
coverages for
a period not to exceed thirty-six (36) months
from the
Termination. The coverages may be procured
directly by the
Company apart from, and outside of the terms of
the plans
themselves, provided that the Executive and the
Executives
dependents comply with all of the conditions of
the medical
or dental plans. In consideration for these
benefits, the
Executive must make contributions equal to those
required
from time to time from employees for equivalent
coverages
under the medical or dental plans.
All payments or benefits provided for above shall be made
available not later
than the thirtieth day following the date of Termination together
with interest
at the rate provided in Section 1274(b)(2)(B) of the Code
computed from the
date of Termination. The parties agree that, because there can
be no exact
measure of the damage which would occur to the Executive as a
result of a
Termination of Executive by PGC, the payments and benefits shall
be deemed to
constitute liquidated damages and not a penalty for PGC's
Termination of
Executive.
7. No Duty of Mitigation. PGC acknowledges and
agrees that
Executive shall have no duty to mitigate any damages the
Executive may incur by
reason of Termination under this Agreement and that Executive
shall be entitled
to receive the payments and benefits provided for in Paragraph 6
above
regardless of any income which Executive may receive from other
sources after
any such termination nor shall it be offset against any amount
claimed to the
owed by the Executive to the Company.
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8. Claims Procedure.
8.1 Claims for any benefits due under this Agreement
shall be made
in writing by the Executive to PGC which shall respond in writing
as soon as
practicable. Such claim shall state in full the basis of the
claim and the
factual information to be considered when reviewing the claim for
benefits.
8.2 If the claim is denied, the written notice of
denial shall
state:
(a) The reasons for the denial or dispute, with
specific reference
to the Agreement provisions upon which the
denial or dispute
is based; and
(b) A description of any additional material or
information
necessary for any reconsideration and an
explanation of why it
is necessary.
8.3 Any person whose claim is denied or who has not
received a
response within fifteen (15) days may request review by notice
given in writing
to the Senior Administrative Officer. The claim shall be
reviewed by the
Senior Administrative Officer, who may, but shall not be required
to grant the
claimant a hearing. On review, the claimant may have
representation, examine
pertinent documents and submit issues and comments in writing.
8.4 The decision of the Senior Administrative
Officer on review
shall be made within fifteen (15) days. The decision shall be in
writing and
shall state the reasons and the relevant Agreement provisions.
8.5 "Senior Administrative Officer" shall mean the
employee in the
management position designated by the Human Resources Committee,
or its
successor committee, of the PGC Board, to handle administrative
matters under
this Agreement.
9. Appeals Procedure. Any controversy or claim
arising out of or
relating to this Agreement or the breach thereof, shall be
settled, at the sole
option of the Executive, in either of the two methods set forth
in subsections
(a) and (b) as follows:
(a) Arbitration in the City of Portland, Oregon, in
accordance
with the laws of the State of Oregon by three
arbitrators, one
of whom shall be appointed by PGC, one by the
Executive and
the third of whom shall be appointed by the
first two
arbitrators. If the first two arbitrators
cannot agree on the
appointment of a third arbitrator, then the
third arbitrator
shall be appointed by the Chief Judge of the
United States
District Court for the District of Oregon. The
arbitration
shall be conducted in accordance with the rules
of the
American Arbitration Association, except with
respect to the
selection of arbitrators which shall be as
provided in
Paragraph 9. Judgment upon the award
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rendered by the arbitrators may be entered in
any court having
jurisdiction thereof; or
(b) Suit in any court of competent jurisdiction.
10. Attorneys Fees. If the Executive, in good
faith, believes PGC
or the Company have failed to pay or provide payment of any
amounts required
to be paid or provided for hereunder at any time, the
Executive shall be
entitled to consult with independent counsel, and PGC agrees to
pay the
reasonable fees and expenses of such counsel for the Executive in
advising him
in connection therewith or in bringing any proceedings, or in
defending any
proceedings, including any appeal arising from any proceeding,
involving the
Executive's rights under this Agreement, such right to
reimbursement to be
immediate upon the presentment by the Executive of written
billings of such
reasonable fees and expenses. The Executive shall be entitled to
the prime
rate of interest established from time to time at United States
National Bank
of Oregon or its successor for any payments of such expenses, or
any other
payments under this Agreement, that are overdue.
11. Notices. Any notices, requests, demands and
other
communications provided for by this Agreement shall be
sufficient if in
writing and if sent by registered or certified mail to the
Executive at the
last address the Executive has filed in writing with the
Company or, in the
case of PGC or the Company, at its principal executive offices.
12. Non-Alienation. The Executive shall not have
any right to
pledge, hypothecate, anticipate or in any way create a lien upon
any amounts
provided under this Agreement; and no benefits payable hereunder
shall be
assignable in anticipation of payment either by voluntary or
involuntary
acts, or by operation of law.
13. Amendment. This Agreement may be amended or
cancelled only
by mutual agreement of the parties in writing, without the
consent of any
other person, and so long as the Executive lives no person,
other than the
parties hereto, shall have any rights under or interest in
this Agreement
or the subject matter hereof.
14. Severability. In the event that any
provision or portion
of this Agreement shall be determined to be invalid or
unenforceable for any
reason, the remaining provisions of this Agreement shall be
unaffected thereby
and shall remain in full force and effect.
15. Terms. Whenever necessary in this instrument
and where in
the context so requires the singular term and the related
pronoun shall
include the plural, and the masculine, feminine and neuter
shall be freely
interchangeable.
16. Entire Agreement. This Agreement constitutes
the entire
agreement among the parties hereto pertaining to the employment
of the
Executive in the event that a
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Change in Control as described in Paragraph 2 above
occurs and
supersedes any and all prior and contemporaneous agreements,
understandings,
negotiations and discussions, whether oral or written, of the
parties with
respect thereto, except change of control provisions in the
Company's benefit
and compensation plans in which Executive is a participant. No
supplement,
modification or waiver of this Agreement or any provisions
hereof shall be
binding unless executed in writing by the parties to be bound
thereby.
17. Not an Employment Contract. This Agreement
shall not in any
way affect either the Executive's, PGC's or the Company's right
to terminate
the employment relationship at any time prior to a Change in
Control. In
such case, neither the Executive, PGC nor the Company shall
have any rights
under this Agreement.
18. Governing Law. The provisions of this
Agreement shall be
construed in accordance with the laws of the State of Oregon.
19. Successors; Binding Agreement. PGC and the
Company will
require any successor (whether direct or indirect, by
purchase, merger,
consolidation or otherwise) to all or substantially all of
the business
and/or assets of PGC or the Company to expressly assume and
agree to perform
this Agreement in the same manner and to the same extent that
PGC or the
Company would be required to perform it if no such succession
had taken
place. Failure of PGC or the Company to obtain such assumption
and agreement
prior to the effectiveness of any such succession shall be a
breach of this
Agreement and shall entitle the Executive to compensation from
PGC and the
Company in the same amount and on the same terms as the
Executive would be
entitled to hereunder upon a Termination (as defined in
Paragraph 5)
following a Change in Control, except that for purposes of
implementing the
foregoing, the date on which any such succession becomes
effective shall be
deemed the date of Termination. As used in this Agreement,
"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. This Agreement shall inure
to the benefit
of and be enforceable by the Executive's personal or legal
representatives,
executors, administrators, successors, heirs, distributees,
devisees and
legatees. If the Executive should die while any amount would
still be
payable to the Executive hereunder if the Executive had continued
to live, all
such amounts, unless otherwise provided herein, shall be paid in
accordance
with the terms of this Agreement to the Executive's devisee,
legatee or other
designee or, if there is no such designee, to the Executive's
estate.
IN WITNESS WHEREOF, the Executive has hereunto set
the Executive's
hand and, pursuant to the authorization from its Board of
Directors, the
Company has caused these presents to be executed in its name on
its behalf,
all as of the day and year first above written.
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Executive
PORTLAND GENERAL
CORPORATION
By:
Its:
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