EXHIBIT 10.2
AMENDMENT TO
AGREEMENT
THIS AMENDMENT TO AGREEMENT was entered into as of May 10, 2000 between
SOUTHWEST GAS CORPORATION, a California corporation (the "Company"), and
_____________ (the "Employee") with reference to the following facts:
A. The Company and Employee have previously entered into an Agreement
dated as of July 1, 1998 (the "Agreement").
B. The Company and the Employee have determined that it is in the best
interests of both parties to amend the Agreement as set forth below.
NOW, THEREFORE, the parties agree:
1. Section 1 of the Agreement is amended by deleting Definition
(d) contained therein, which reads:
(d) "Cause" shall mean (i) any material breach by the Employee of
his material duties and obligations as an employee of the
Company (as such duties and obligations may be assigned by the
Board or by the President and CEO of the Company) which is not
cured within 60 days after written notice of such breach by
the Company to the Employee, (ii) conviction of the Employee
of a felony or crime involving moral turpitude (meaning a
crime that necessarily includes the commission of an act of
gross depravity, dishonesty or bad morals), or (iii) any acts
or willful malfeasance or gross negligence in a matter of
material importance to the Company.
2. Section 1 of the Agreement is further amended by adding a new
Definition (d), which reads:
(d) "Cause" shall mean (i) a material act of theft,
misappropriation, or conversion of corporate funds committed
by the Employee, or (ii) an Employee's demonstrably willful,
deliberate and continued failure to follow reasonable
directives of the Board or the President and CEO which are
within Employee's ability to perform.
3. Section 4(a) of the Agreement is amended by adding the following
paragraphs to the existing text:
Notwithstanding the foregoing, for the 24-month period following a
Change in Control as defined in Section 4 herein, Employee shall not be deemed
to have been terminated for Cause unless and until: (1) there shall have been
delivered to Employee a copy of a resolution duly adopted by the Board in good
faith at a meeting of the Board called and held for such purpose (after
reasonable notice to Employee and an opportunity for Employee, together with his
counsel, to be heard before the Board), finding that Employee was guilty of
conduct set forth above and specifying the particulars thereof in reasonable
detail; and (2) if Employee contests such finding (or a conclusion that he has
failed to timely cure the performance in response thereto), the arbitrator, by
final determination in an arbitration proceeding pursuant to Section 5 hereof,
has concluded that Employee's conduct met the standard for termination for Cause
above and that the Board conduct met the standards of good faith and satisfied
the procedural and substantive conditions of this Definition (d) (collectively,
the "Necessary Findings"). Employee's costs of the arbitration shall be advanced
by the Company and shall be repaid to the Company if the arbitrator makes the
Necessary Findings.
If within sixty (60) days after receipt by Employee of the resolution
referred to in the preceding paragraph, Employee notifies the Company that a
dispute exists concerning the termination, the termination date of Employee
shall be the date as finally determined by mutual written agreement of the
parties or by a final and binding arbitration award. During the period until the
dispute is finally resolved, Company will continue to pay Employee his full
compensation in effect when the notice giving rise to the dispute was given
(including, but not limited to, base salary) and continue Employee as a
participant in all compensation, employee benefit, health and welfare and
insurance plans, programs, arrangements and perquisites in which Employee was
participating or to which he was entitled when the notice giving rise to the
dispute was given, until the dispute is finally resolved. Amounts paid under
this Section shall be repaid to the Company or be offset against or reduce any
other amounts due Employee under this Agreement, if appropriate, only upon the
final resolution of the dispute.
4. Section 5 of the Agreement is amended by deleting the following
paragraphs contained therein:
In the event that, following a Change in Control, the Company
terminates the Employee by reason of his Permanent Disability or for Cause and
the Employee disputes the accuracy of the assertion of Permanent Disability or
Cause, or in the event that, following a Change in Control, the Employee
terminates his employment for Good Reason and the Company disputes the accuracy
of such assertion of Good Reason, or in the event either party disputes the
occurrence of a Change in Control, such dispute shall be resolved through final
and binding arbitration in Clark County, Nevada in accordance with the then
current commercial arbitration rules of the American Arbitration Association
("Association") or its successor, provided the Employee or the Company files a
written demand for arbitration at a regional office of the Association within 30
calendar days following the date the Employee notifies the Company that he
disputes the accuracy of the assertion of Permanent Disability or Cause or
Change in Control, or the Company notifies the Employee that it disputes the
accuracy of the assertion of Good Reason or Change in Control. In no event shall
a demand for arbitration be made after the date when institution of legal or
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equitable proceedings based on the dispute in question would be barred by any
applicable statute of limitations. In the event the Arbitrator finds that a
Change in Control has occurred and the termination by the Company was not for
Permanent Disability or not for Cause or that the termination by the Employee
was for Good Reason, the Employee shall not be entitled to reinstatement, but
shall be entitled to the appropriate benefits under Section 4 and payment of his
reasonable legal expenses in such arbitration. Any reasonableness of costs and
expenses shall be determined by the arbitrator.
Should the employee at any time bring suit against the Company for
breach of this Agreement (not including any matter required to be submitted to
arbitration pursuant to the foregoing provisions of this Section 5) and obtain
judgment in his favor, the Company shall pay his reasonable legal expenses and
costs of suit. The provisions of this Section 5 shall in no way limit the right
of any party to exercise self-help remedies or to obtain provisional or
ancillary relief from a court of competent jurisdiction before, after, or during
the pendency of any arbitration proceeding. The exercise of such remedy shall
not waive the right of any party to resort to arbitration. The parties each
acknowledge and agree that to any extent any legal proceeding other than
arbitration is permitted in this Section 5, the superior Court of the State of
Nevada in and for Clark County, and the associated federal and appellate courts,
shall have exclusive jurisdiction over such legal proceedings.
5. Section 5 of the Agreement is further amended by adding the
following paragraph which replaces the paragraphs deleted from Section 5:
Any dispute, controversy or claim arising out of or in respect to this
Agreement (or its validity, interpretation or enforcement), the employment
relationship, or the subject matter hereof must be submitted to and settled by
arbitration conducted before a single arbitrator (chosen from a list of
arbitrators provided by the American Arbitration Association with each party
hereto taking alternate strikes and the remaining arbitrator hearing the
dispute). The arbitration will be conducted in Clark County, Nevada in
accordance with the then current rules of the American Arbitration Association
or its successor. The arbitration of such issues, including the determination of
any amount of damages suffered, will be final and binding upon the parties to
the maximum extent permitted by law. The arbitrator in such action will not be
authorized to change or modify any provision of the Agreement. Judgment upon the
award rendered by the arbitrator may be entered by any court having jurisdiction
thereof. The arbitrator will award reasonable legal fees and expenses (including
arbitration costs) to the prevailing party upon application therefor. The
parties consent to the jurisdiction of the Supreme Court of the State of Nevada
and of the U.S. District Court for the District of Nevada for all purposes in
connection with arbitration, including the entry of judgment of any award.
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IN WITNESS WHEREOF, the parties hereto have duly executed this Amendment to the
Agreement as of the date first above written.
SOUTHWEST GAS CORPORATION
By:
Michael O. Maffie
Its: President and Chief Executive Officer
EMPLOYEE
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[Employee]
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