Exhibit 10.154
AGREEMENT
This Agreement (the "Agreement") is made and entered into as of March
20, 1998 between Puget Sound Energy, Inc., a Washington corporation (the
"Company"), and Joe Quintana (the "Employee"). The term "Parties" refers to the
Company and the Employee.
A. The Company wishes to employ Employee as its Vice President--
External Affairs, and Employee wishes to accept such employment, effective as of
April 13, 1998.
B. The Company wishes to be reasonably assured that Employee will
continue with the Company and desires to retain his services and to provide an
incentive for Employee to devote his abilities and industry to the success of
the Company's business.
C. The Parties have reached agreement on certain terms and conditions
applicable to such employment, and believe that it is in their mutual best
interests to enter into a written agreement that specifies those terms and
conditions.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, and for other good and valuable consideration, the Parties
agree as follows:
1. Employment
The Company hereby agrees to employ Employee as its Vice
President--External Affairs and to perform the obligations of the Company under
this Agreement. Employee hereby accepts employment by the Company and agrees to
perform the obligations of Employee under this Agreement.
2. Term
This Agreement shall commence on the date hereof and shall terminate
on the fifth anniversary hereof (the "Term") unless extended prior to such fifth
anniversary by written agreement, subject to earlier termination as provided in
Section 10 (Termination Prior to the End of the Term).
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3. Duties
Employee shall faithfully and diligently perform such duties and
exercise such powers as are customarily expected of the Vice President--External
Affairs of business organizations which are similar to the Company, and as may
from time to time be properly assigned to him by the Chief Executive Officer or
the Board of Directors of the Company.
4. Extent of Services
Employee shall devote his full working time, attention and skill to the
duties and responsibilities set forth in Section 3. Employee may participate in
other businesses as an outside director or investor, provided that Employee
shall not actively participate in the operation or management of such
businesses.
5. Salary
In consideration for the performance of Employee's obligations under
this Agreement, the Company shall pay Employee an annual salary of $180,000,
which salary shall be subject to prospective adjustment from time to time by the
Board of Directors of the Company, in its sole discretion, but shall not be
reduced during the term of this Agreement. Employee's salary shall be paid in
installments in accordance with the Company's payroll policy for other
employees.
6. Incentive Compensation
The Employee shall participate in the Company's annual and long-term
incentive compensation programs which at present include an annual cash
incentive bonus and a stock-based long term incentive plan. The annual incentive
target and the annual portion of long term incentive targets shall be at least
30% of base salary. One half of the annual incentive target for 1998, or
$27,000, shall be guaranteed. Employee shall be granted long term incentive
share awards of 540 shares for the 1995-1998 cycle, 1260 shares for the
1996-1999 cycle, 1980 shares for the 1997-2000 cycle and 2880 shares for the
1998-2001 cycle.
7. Benefits
Employee shall be entitled to participate in the Company's Retirement
Benefit Plan, Investment Plan and Deferred Compensation Plan, in accordance with
their terms, each of which may be amended from time to time, and any other
benefit plans now or hereafter available to the Company's executive officers.
The Company shall provide Employee with medical, life and disability insurance
benefits, and other executive benefits, with terms and provisions substantially
as favorable to Employee as those provided to other executive officers of the
Company. The Company may prospectively amend, eliminate or add to the insurance
and benefit programs at any time, in its sole discretion. Employee shall be
entitled to paid time off in accordance with Company policies, shall start with
a PTO account balance of 20 days and shall annually have at least 20 days
credited to his PTO account.
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8. Supplemental Retirement Benefit
Employee shall accrue a supplemental retirement benefit under the
Company's Supplemental Executive Retirement Plan dated as of June 1, 1997 (the
"SERP"), as modified by the terms of this Agreement. If Employee completes five
years of service to the Company, he shall be entitled to a monthly benefit upon
retirement at age 62 equal to one-twelfth of 50% of (a) the annual average of
his highest 36 consecutive months of salary paid or payable, plus (b) the
average of his highest three annual bonuses paid or payable (collectively,
"Earnings"). This monthly amount shall be reduced by the monthly amount payable
as of the retirement date for the life of Employee under the Company's qualified
Retirement Benefit Plan (or, if payable as of another date and/or payable in
another form, the Actuarial Equivalent (as defined in the SERP) of the monthly
amount payable under the Retirement Benefit Plan as of the retirement date for
the life of Employee). Employee may elect to take early retirement after
attaining age 55, in which case the monthly benefit will be reduced one-third of
one percent for each month that benefits commence prior to the month in which
Employee would attain age 62. If Employee's employment with the Company
terminates for any reason prior to the completion of five years of service to
the Company, the supplemental retirement benefits shall vest at the rate of 20%
for each full 12 month period of employment commencing with April 13, 1998. For
example, if Employee's employment terminates on April 13, 2001, the benefit
otherwise payable at age 62 would be 30% of Earnings (60% times 50% equals 30%).
If Employee's employment terminates prior to the completion of three years of
service, the average Earnings will be determined based upon the period of time
actually served. Employee's supplemental retirement benefits will become 100%
vested upon the occurrence of a Change of Control (as defined in Section 11),
without regard to Employee's number of years of service. Vested benefits shall
not be forfeitable for any reason, including the subsequent termination of
Employee's employment by the Company with or without cause. Except as
specifically set forth herein, Employee's supplemental retirement benefit shall
be subject to the terms and conditions of the SERP. In the event of conflict
between the terms of the SERP and the terms of this Agreement, this Agreement
shall be controlling, unless applying the terms of the SERP would result in a
greater benefit to Employee. For purposes of determining the benefit payable
under the SERP in the event of Employee's Disability (as defined in the SERP) or
death, Employee shall be credited with three Years of Service (as defined in the
SERP) under the SERP for each 12 months of service after April 13, 1998.
Employee may elect any alternate form of payment of supplemental retirement
benefits permitted by the SERP. No amendment or termination of the SERP shall
alter the terms of this Agreement in a manner that would diminish the benefits
payable hereunder. The provisions of this Section 8 shall survive the expiration
of the Term and any termination of this Agreement.
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9. Expenses
The Company shall reimburse Employee for reasonable expenses incurred
by Employee in promoting the business of the Company, subject to the Company's
expense reimbursement policies, which may be amended from time to time.
10. Termination Prior to the End of the Term
10.1 The Company may terminate this Agreement for cause prior to the
end of the Term. For the purposes of this Agreement, "cause" shall mean (a) the
willful and continued failure by Employee to substantially perform his duties
with the Company (other than any such failure resulting from incapacity due to
physical or mental illness), for a period of 30 days after written notice of
demand for substantial performance has been delivered to Employee by the Board
of Directors which specifically identifies the manner in which the Board
believes that Employee has not substantially performed his duties, or (b) the
willful engaging by Employee in gross misconduct materially and demonstrably
injurious to the Company, as determined by the Board of Directors after notice
to Employee and an opportunity for a hearing. No act, nor failure to act, on
Employee's part shall be considered "willful" unless he has acted or failed to
act with an absence of good faith and without a reasonable belief that his
action or failure to act was in the best interests of the Company. If the Board
of Directors of the Company terminates Employee's employment for "cause," the
Company shall be obligated to pay to Employee under this Agreement his current
base salary plus accrued vacation as well as any other compensation actually
accrued through the date of termination, and Employee shall remain entitled to
any supplemental retirement benefit which has become vested pursuant to this
Agreement.
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10.2 The Company may, at its option and at any time, terminate
Agreement prior to the end of the Term, without cause. In the event that the
Company exercises this right, Employee shall be entitled to receive (a) all
compensation and benefits earned through the date of termination, (b) a pro rata
portion (based on the portion of the year elapsed prior to the date of
termination) of the annual target bonus for the year in which the termination
occurs, (c) a pro rata portion (based on the portion of the award cycle elapsed
prior to the date of termination and the performance of the Company against the
target benchmarks during that period) of the target award under long-term
incentive compensation programs (whether or not then fully vested), and (d)
continuation of his base salary at the level in effect as of the date of
termination for two years. In the event of a termination without cause before
Employee's supplemental retirement benefits have become fully vested under the
terms of this Agreement, Employee shall be credited with two additional years of
service for purposes of determining the supplemental retirement benefit payable
pursuant to Section 8 of this Agreement.
10.3 The Term shall terminate in the event Employee dies, or is unable
to perform his duties as a result of "Disability." In the event of a termination
under this subsection, Employee or his estate shall be paid all compensation and
benefits earned through the date of such termination, including pro-rated
payments under annual and long-term incentive compensation programs, and shall
be entitled to receive benefits under any salary continuation plan that the
Company may have in effect as of the date of such termination and under the
SERP, as modified by this Agreement. "Disability" means a physical or mental
condition that entitles Employee to benefits under the Company's long-term
disability plan.
11. Change in Control
11.1 The Board of Directors, in the exercise of its responsibility to
serve the best interests of the shareholders of the Company, may at any time
consider a merger or acquisition proposal that could result in a Change of
Control of the Company. In order to avoid any adverse affect on Employee's
performance under this Agreement that might be caused by uncertainties
concerning his tenure and treatment by the Company in the event of such a Change
in Control, the Company has agreed to provide certain benefits to Employee in
certain circumstances involving a Change of Control of the Company in accordance
with the provisions of this Section. For purposes of this Agreement, a Change in
Control shall mean the occurrence of any one of the following actions or events:
(a) The acquisition by any individual, entity or group of beneficial
ownership (within the meaning of Rule 13d-3 promulgated under the Securities
Exchange Act) of (i) 20% or more of either (A) the outstanding Company Common
Stock or (B) the outstanding Company voting securities; provided, however, that
the following acquisitions shall not constitute a Change of Control: (x) any
acquisition by the Company, (y) any acquisition by any employee benefit plan (or
related trust) sponsored or maintained by the Company or any corporation
controlled by the Company, or (z) any acquisition by any corporation pursuant to
a business combination, if, following such business combination, the conditions
described in clauses (i), (ii) and (iii) of subsection (c) of this Section 11.1
are satisfied; or
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(b) A "Board Change" which, for purposes of this Agreement, shall have
occurred if a majority of the seats on the Board are occupied by individuals who
were neither (i) nominated by a majority of the Incumbent Directors nor (ii)
appointed by directors so nominated ("Incumbent Director" means a member of the
Board who has been either (i) nominated by a majority of the directors of the
Company then in office or (ii) appointed by directors so nominated, but
excluding, for this purpose, any such individual whose initial assumption of
office occurs as a result of either an actual or threatened election contest (as
such terms are used in Rule 14a-11 of Regulation 14A promulgated under the
Securities Exchange Act) or other actual or threatened solicitation of proxies
or consents by or on behalf of a Person other than the Board); or
Approval by the shareholders of the Company of a complete liquidation or
dissolution of the Company or a Business Combination (which means (A) a
reorganization, exchange of securities, merger or consolidation of the Company
or (B) the sale or other disposition of all or substantially all the assets of
the Company) unless, in the case of a Business Combination, immediately
following such Business Combination, (i) more than 50% of, respectively, the
then outstanding shares of common stock of the corporation resulting from or
effecting such Business Combination and the combined voting power of the then
outstanding voting securities of such corporation entitled to vote generally in
the election of directors is then beneficially owned, directly or indirectly, by
all or substantially all the individuals and entities who were the beneficial
owners, respectively, of the outstanding Company Common Stock and outstanding
Company voting securities immediately prior to such Business Combination in
substantially the same proportion as their ownership, immediately prior to such
Business Combination, of the outstanding Company Common Stock and outstanding
Company voting securities, as the case may be, (ii) no Person (excluding the
Company and any employee benefit plan (or related trust) of the Company)
beneficially owns, directly or indirectly, 20% or more of, respectively, the
then outstanding shares of common stock of the corporation resulting from or
effecting such Business Combination or the combined voting power of the then
outstanding voting securities of such corporation entitled to vote generally in
the election of directors, and (iii) at least a majority of the members of the
board of directors of the corporation resulting from or effecting such Business
Combination were (or were approved by a majority of) the Incumbent Directors at
the time of the execution of the initial agreement or action of the Board
providing for such Business Combination.
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11.2 In the event that a Change in Control occurs, whether during or
after the term of this Agreement, and Employee's employment is terminated prior
to the expiration of three years following the date of the Change of Control,
whether by the Company or its successor or by Employee, Employee shall be
entitled to receive the benefits described in Subsection 11.3. These are in
substitution for, and not in addition to, the benefits described in Subsection
10.2.
11.3 In the event of a termination of Employee's employment as
described in Subsection 11.2, the Company shall provide to Employee the
following benefits:
(a) Employee's full base salary earned through the termination
date, plus payment for all accrued vacation and any deferred compensation to
which Employee is entitled for the fiscal year most recently ended prior to
Employee's termination, any annual or long-term incentive payment which has been
earned but not yet paid, and a pro rata portion (based on the portion of the
year elapsed prior to the date of termination) of the annual target bonus for
the year in which the termination occurs; plus
(b) Within 30 days following the date of termination, an
amount equal to three times the sum of Employee's annual base salary and his
annual target bonus at the rates in effect as of the date of termination (or the
rates in effect for the prior fiscal year, if higher). However, if Employee
would attain age 62 within three years after the date of termination, the
multiplier in the preceding sentence shall be reduced from three to that
fraction of three representing the number of months remaining to the date
Employee would attain age 62, divided by 36. For example, if 18 months remain to
age 62, the multiplier would be 18/36 x three = 1.5.
(c) The Company shall maintain in full force and effect for three years
following the date of termination all employee health and welfare benefit plans,
programs and policies, including any life or health insurance plans in which
Employee was entitled to participate immediately prior to termination, provided
that Employee is qualified to participate under the general terms and provisions
of such plans, programs and policies. In the event that Employee's participation
in any such plan, program or policy is not possible under its terms and
conditions, the Company shall at its option either arrange for Employee to
receive benefits substantially similar to those which Employee would have been
entitled to receive under each plan, program or policy, or pay to employee an
amount equal to the premiums that the Company would pay on Employee's behalf for
participation in such plan, program or policy. At the end of the period of
coverage, Employee will have the option to receive an assignment at no cost, and
with no apportionment of prepaid premiums, any assignable insurance policies
owned by the Company and relating to Employee, and to take advantage of any
conversion privileges pertinent to the benefits available under Company
policies.
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(d) In addition to the regular payment of benefits to which Employee is
entitled under the retirement plans or programs in effect on the date of
Employee's termination, which shall not be affected by such termination, the
Company shall pay to Employee in cash when Employee attains age 62, or such
earlier retirement date as Employee may elect, an amount equal to the actuarial
equivalent of the additional retirement compensation to which Employee would
have been entitled under the terms of such retirement plans or programs (without
regard to vesting) had Employee continued in the employ of the Company for three
years (but not beyond age 62) following the date of termination at Employee's
base salary rate as of the date of termination. For purposes of this
calculation, the actuarial equivalent shall be determined by assuming survival
to age 80. Employee shall have the option to elect to receive within 120 days
following the date of termination the present value equivalent, discounted at
seven percent, of this additional payment assuming retirement at Employee's age
on the date of termination. If Employee has not yet attained age 55 by the date
of termination, the present value equivalent of the additional payment shall be
calculated assuming retirement at age 55.
(e) Employee shall waive all rights to receive shares of
common stock of the Company issuable upon exercise of options granted to
employee under the Company's stock option plans. In return for that waiver with
respect to any stock options, Employee shall be entitled to receive, within 30
days following the date of termination, a payment equal to the difference
between the amount payable by Employee to acquire such stock, whether or not
then fully vested, and the higher of (1) the average of the last sale prices of
the Company's (or its successor's) Common Stock on the New York Stock Exchange
in each of the twenty business days preceding the date of termination or (2) the
highest price per share actually paid for any of the Company Common Stock in
connection with any Change in Control of the Company.
(f) With respect to all performance awards granted to the
Executive pursuant to the Company's Long-Term Incentive Plan or any successor
plan that are outstanding immediately prior to the date of termination, the
Company shall also issue to the Executive within 30 days after the date of
termination:
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(i) cash equal to the higher of (1) the average of the last sale prices of
the Company's (or its successor's) Common Stock on the New York Stock Exchange
in each of the twenty business days preceding the date of termination or (2) the
highest price per share actually paid for any of the Company Common Stock in
connection with the Change in Control, multiplied by aggregate number of shares
of the Company's Common Stock (or, if the event that triggered the Effective
Date is a Business Combination, the equivalent number of shares of the then
outstanding common stock of the corporation resulting from or effecting such
Business Combination into which such shares of Common Stock have been converted)
equal to the greater of (x) the total number of the shares payable at the target
award level upon full vesting of each such performance award and (y) such higher
number of shares payable upon full vesting of each such award if the Company
achieved for each four-year award cycle the percentile ranking against the
comparable universe of EEI companies which the Company had achieved for the
applicable cycle during the period commencing upon the starting year of such
cycle and ending with the fiscal quarter immediately preceding the date of
termination; and
(ii) cash equal to the amount of the dividend equivalents associated with
the shares issuable under subparagraph (i) above, in accordance with the
Incentive Plan.
(g) Notwithstanding any other provisions of this Agreement, if
any severance benefits under Section 11 of this Agreement, together with any
other Parachute Payments (as defined under Internal Revenue Code Section
280(G)(b)(2) or any successor provision) made by the Company to Employee, if
any, are characterized as Excess Parachute Payments (as defined in Internal
Revenue Code, Section 280(G)(b)(1) or any successor provision), then the Company
shall pay to Employee, in addition to the payments to be received under this
Section, an amount equal to the excise taxes imposed by Section 4999 of the Code
or any successor provision on Employee's Excess Parachute Payments, plus an
amount equal to the federal and, if applicable, state income taxes which will be
payable to Employee as a result of this additional payment.
(h) The Executive may, by giving written notice to the Company at least 120 days
prior to receipt of regulatory approval from the Washington Utilities and
Transportation Commission for the Change of Control, elect to receive the
Actuarial Equivalent (as defined in the SERP) lump sum value of the normal form
of payment of SERP benefits, or to have the Actuarial Equivalent lump sum value
transferred to the Company's Deferred Compensation Plan or any successor
deferred compensation plan. If the Executive is younger than the minimum age for
eligibility for payment of SERP benefits, the Executive in his notice to the
Company may elect to receive the discounted present value, using a seven percent
discount rate, of the Actuarial Equivalent lump sum value of the SERP benefits
to which the Executive would be entitled at the minimum age.
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Employee shall not be required to mitigate the amount of any payment
due hereunder by seeking other employment and, except as provided in the next
sentence, the payments due hereunder shall not be affected by any other
employment which Employee may obtain. If Employee accepts a position with
another employer during the period for payment of employee benefits under
Section 11.3(c), then the Company's obligation to pay such employee benefits
will cease as of the date of Employee's new employment, provided, however, that
the Company will continue such benefits for the full period to the extent that
they exceed the comparable benefits from such other employment.
If the Company adopts new or revised change of control agreements for
its executives after the date of this Agreement which contain terms more
favorable to Company executives than the terms contained in this Agreement, the
provisions of this Section shall be amended to reflect such terms. The amendment
shall not, however, diminish Employee's rights and benefits under this
Agreement.
The provisions of this Section 11 shall survive the expiration of the
Term and any termination of this Agreement.
12. Indemnification
The Company shall defend, indemnify and hold Employee harmless from any
and all liabilities, obligations, claims or expenses which arise in connection
with or as a result of Employee's service as an officer or employee (or director
if Employee is elected and serves as a director) of the Company and/or any of
its affiliates and subsidiaries to the fullest extent allowed by law. The
Company shall assure that Employee remains covered by the Company's policies of
directors' and officers' liability insurance for six years following the date of
termination.
13. Confidentiality
Employee shall not, during the term of this Agreement or thereafter, use
for his own purposes or disclose to any other person or entity any confidential
information concerning the Company, its affiliates or subsidiaries, or any of
their business operations, except as may be consistent with his duties hereunder
or as may be required by order of a court of competent jurisdiction.
Confidential information shall include, without limitation, any information,
formula, pattern, compilation, program, device, method, technique or process
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 or entities.
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14. Noncompetition
14.1 During the term of his employment with the Company and for a
period of two years following any voluntary termination by Employee, Employee
shall not, without the prior written consent of the Company which shall not be
unreasonably withheld, perform services for any person or entity engaged in the
business of selling or distributing electric power or natural gas in the states
of Washington, Oregon or Idaho in competition with the Company.
14.2 Employee agrees that damages for breach of the covenants contained
in this Section would be difficult to determine and therefore agrees that these
provisions may be enforced by temporary or permanent injunction. The right to
such injunctive relief shall be in addition to and not in place of any other
remedies to which the Company may be entitled.
14.3 Employee agrees that the provisions of this Section are
reasonable. However, if any court of competent jurisdiction determines that any
provision within this Section is unreasonable in any respect, the Parties intend
that this Section should be enforced to the fullest extent allowed by such
court.
15. Payments and Disputes
For purposes of this Agreement, the date of termination will be the
date written notice of termination is given by Employee or the Company. The
amounts specified in Sections 11.3(a) and 11.3(b) will be paid no more than ten
business days after the date of termination. In the event that any payments due
hereunder shall be delayed for any reason for more than ten business days from
the date due, the amounts due shall bear interest at the rate of 12% per annum
until paid.
Any dispute between the Parties hereto with respect to any of the matters set
forth herein shall be submitted to binding arbitration in city of Seattle, state
of Washington. Either Party may commence the arbitration by delivery of a
written notice to the other, describing the issue in dispute and its position
with regard to the issue. If the Parties are unable to agree on an arbitrator
within 30 days following delivery of such notice, the arbitrator shall be
selected by a Judge of the Superior Court of the State of Washington for King
County upon three days' notice. Discovery shall be allowed in connection with
any such arbitration to the same extent permitted by the Washington Rules of
Civil Procedure but either Party may petition the arbitrator to limit the scope
of such discovery, in which event the arbitrator shall determine the extent of
discovery allowable in connection with the dispute in question. Except as
otherwise provided herein, the arbitration shall be conducted in accordance with
the rules of the American Arbitration Association then in effect for expedited
proceedings. The award of the arbitrator shall be final and binding, and
judgment upon an award may be entered in any court of competent jurisdiction.
The arbitrator shall hold a hearing, at which the Parties may present evidence
and argument, within 30 days of his or her appointment, and shall issue an award
within 15 days of the close of the hearing. The Company will pay all fees and
expenses, including attorneys' fees and the cost of the arbitrator, incurred by
Employee in good faith in contesting or disputing any termination for cause or
in seeking to obtain or enforce any right or benefit provided by this Agreement.
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16. Notices
All notices or other communications required or permitted by this
Agreement shall be in writing and shall be sufficiently given if sent by
certified mail, postage prepaid, addressed as follows:
If to Employee, to:
Joe Quintana
2053 41st Avenue E.
Seattle, WA 98112
If to Company:
Puget Sound Energy, Inc.
P.O. Box 97034
Bellevue, WA 98009-9734
Attention: Corporate Secretary
Facsimile: (206) 462-3300
Any such notice or communication shall be deemed to have been given as
of the date mailed. Any address may be changed by giving written notice of such
change in the manner provided herein for giving notice.
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17. Waiver of Breach
The waiver by a Party of a breach of any provision of this Agreement
shall not operate or be construed as a waiver of any subsequent breach.
18. Binding Effect
This Agreement shall be binding upon and inure to the benefit of the
Parties, and their successors, legal representatives and heirs, including any
successor to the Company's business or assets by merger, consolidation, sale of
assets or otherwise.
19. Entire Agreement
This Agreement contains the entire understanding of the Parties with
the subject matter of this Agreement and may only be changed by written
agreement signed by both Parties. Any and all prior discussions, negotiations,
commitments and understandings related thereto are merged herein.
20. Governing Law
This Agreement shall be governed by, construed and enforced in
accordance with the laws of the state of Washington, without giving effect to
principles and provisions thereof relating to conflict or choice of laws and
irrespective of the fact that any one of the Parties is now or may become a
resident of a different state.
21. Validity
In case any term of this Agreement shall be invalid, illegal or
unenforceable, in whole or in part, the validity of any of the other terms of
this Agreement shall not in any way be affected thereby.
22. Counterparts
This Agreement may be executed in counterparts, each of which shall be
deemed to be an original.
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IN WITNESS WHEREOF, the Parties have executed this Agreement as of date
first written above.
PUGET SOUND ENERGY, INC.
By: /s/ Steve McKeon
--------------------------
/s/ Joe Quintana
--------------------------
JOE QUINTANA
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