Exhibit 10(C)
CHANGE IN CONTROL AGREEMENT
----------------------------------
THIS AGREEMENT, dated May 21, 2001, is made by and between
Sierra Pacific Resources, a Nevada corporation (the "Company"), and Dennis D.
Schiffel (the "Executive").
WHEREAS, the Company considers it essential to the best
interests of its stockholders to foster the continued employment of key
management personnel; and
WHEREAS, the Board recognizes that, as is the case with many
publicly held corporations, the possibility of a Change in Control exists and
that such possibility, and the uncertainty and questions which it may raise
among management, may result in the departure or distraction of management
personnel to the detriment of the Company and its stockholders; and
WHEREAS, the Board has determined that appropriate steps
should be taken to reinforce and encourage the continued attention and
dedication of members of the management of the Company and its subsidiaries
(collectively, "Sierra"), including the Executive, to their assigned duties
without distraction in the face of potentially disturbing circumstances arising
from the possibility of a Change in Control;
NOW, THEREFORE, in consideration of the premises and the
mutual covenants herein contained, the Company and the Executive hereby agree as
follows:
1. Defined Terms. The definitions of capitalized term
-------------
sused in this Agreement are provided in the last Section hereof.
2. Term of Agreement. The term of this Agreement shall
-----------------
commence on the date hereof and shall continue in effect through December 31,
2004; provided, however, that if a Change in Control shall have occurred during
-------- -------
the Term shall expire no earlier than twenty-four (24) months beyond the month
in which such Change in Control occurred; and further provided, however, that
------- -------- -------
if a Potential Change in Control shall have occurred during the Term, the Term
shall expire no earlier than the latter of (a)December 31, 2004 (b) the date on
which such potential Change in Control shall have been terminated, or (c) 24
months beyond the date on which such potential Change in Control shall have
resulted in a Change of Control.
1
3. Company's Covenants Summarized. In order to induce the
------------------------------
Executive to remain in the employ of Sierra and in consideration of the
Executive's covenants set forth in Section 4 hereof, the Company agrees, under
the conditions described herein, to pay the Executive the Severance Payments and
the other payments and benefits described herein. Except as provided in Section
9.1 hereof, no Severance Payments shall be payable under this Agreement unless
there shall have been (or, under the terms of the second sentence of Section 6.1
hereof, there shall be deemed to have been) a termination of the Executive's
employment with Sierra following a Change in Control or potential Change in
Control and during the Term. This Agreement shall not be construed as creating
an express or implied contract of employment and, except as otherwise agreed in
writing between the Executive and Sierra, the Executive shall not have any right
to be retained in the employ of Sierra. The obligations of the Company hereunder
shall be deemed satisfied to the extent payments are made by Sierra Pacific
Power, Nevada Power, or any affiliate of the Company or any successor to the
Company or any successor to any affiliate of the Company.
4. The Executive's Covenants. The Executive agrees that,
-------------------------
subject to the terms and conditions of this Agreement, in the event of a
Potential Change in Control during the Term, the Executive will remain in the
employ of the Company until the earliest of (i) a date which is six (6) months
from the date of such Potential Change of Control, (ii) the date of a Change in
Control, (iii) the date of termination by the Executive of the Executive's
employment for Good Reason or by reason of death, Disability or Retirement, or
(iv) the termination by Sierra of the Executive's employment for any reason.
5. Compensation Other Than Severance Payments.
------------------------------------------
5.1 Following a Change in Control or potential Change in
Control and during the Term, during any period that the Executive fails to
perform the Executive's full-time duties with Sierra as a result of incapacity
due to physical or mental illness, the Company shall pay the Executive's full
salary to the Executive at the rate in effect at the commencement of any such
period, together with all compensation and benefits payable to the Executive
under the terms of any compensation or benefit plan, program or arrangement
maintained by Sierra during such period, until the Executive's employment is
terminated by Sierra for Disability.
5.2 If the Executive's employment shall be terminated for any
reason following a Change in Control or potential Change in Control and during
the Term, the Company shall pay the Executive's full salary to the Executive
through the Date of Termination at the rate in effect immediately prior to the
Date of Termination or, if higher, the rate in effect immediately prior to the
first occurrence of an event or circumstance constituting Good Reason, together
with all compensation and benefits payable to the Executive through the Date of
Termination under the terms of Sierra compensation and benefit plans, programs
or arrangements as in effect immediately prior to the Date of Termination or, if
more favorable to the Executive,
2
as in effect immediately prior to the first occurrence of an event or
circumstance constituting Good Reason.
5.3 If the Executive's employment shall be terminated for any
reason following a Change in Control or potential Change in Control and during
the Term, the Company shall pay to the Executive the Executive's normal
post-termination compensation and benefits (other than any severance payments
forgone under Section 6.1a) as such payments become due, provided that the
Executive is eligible or entitled to such compensation and benefits under the
terms and conditions of any such plan or program in effect and provided further
that the Executive fully complied with all conditions and requirements of any
such plan or program, and provided further that such payments or benefits are
not otherwise precluded under the terms of this Agreement. Such
post-termination compensation and benefits shall be determined under, and paid
in accordance with, Sierra's retirement, insurance and other compensation or
benefit plans, programs and arrangements as in effect immediately prior to the
Date of Termination or, if more favorable to the Executive, as in effect
immediately prior to the occurrence of the first event or circumstance
constituting Good Reason.
6. Severance Payments.
------------------
6.1 Subject to Section 6.2 hereof, if the Executive's
employment is terminated following a Change in Control or Potential Change in
Control and during the Term, other than (A) by Sierra for Cause, (B) by reason
of death or Disability, or (C) by the Executive without Good Reason,
then Sierra shall pay the Executive the amounts, and provide the Executive the
benefits,described in this Section 6.1("Severance Payments"), in addition to
any payments and benefits to which theExecutive is entitled under Section 5
hereof. For purposes of this Agreement,the Executive's employment shall be
deemed to have been terminated following a Change in Control or Potential Change
in Control by Sierra without Cause or by the Executive with Good Reason,if (i)
the Executive's employment is terminated by Sierra without Cause prior to a
Change in Control (whether or not a Change in Control ever occurs) and
suchtermination was at the request or direction of a Person who has entered
into agreement with the Company the consummation of which would constitute a
Changein Control, (ii) the Executive terminates his employment for Good Reason
priorto a Change in Control (whether or not a Change in Control ever occurs)
and thecircumstance or event which constitutes Good Reason occurs at the
request ordirection of such Person, or (iii) the Executive's employment is
terminated by Sierra without Cause or by the Executive for Good Reason and such
termination or the circumstance or event which constitutes Good Reason is
otherwise in connection with or in anticipation of a Change in Control (whether
or not a Change in Control ever occurs). For purposes of any determination
regarding the applicability of the immediately preceding sentence, any position
taken by the Executive shall be presumed to be correct unless the Company
establishes to the Board by clear and convincing evidence that such position is
not correct.
3
(A) In lieu of any further salary payments to the
Executive for periods subsequent to the Date of Termination and in lieu
of any severance benefit otherwise payable to the Executive under or
pursuant to any contract or plan, except for any severance benefits
relating to or resulting from the Supplemental Executive Retirement
Plan (provided the Executive is a participant in the Plan),
whether as a consequence of a Change in Control or
otherwise,subject to the provisions of Section 6.2(a), the
Company shall pay to the Executive a lump sum severance payment, in
cash, equal to three times the sum of (i) the Executive's base salary
as in effect immediately prior to the Date of Termination or, if
higher, in effect immediately prior to the first occurrence of an event
or circumstance constituting Good Reason, and (ii) the target annual
incentive award applicable to the Executive pursuant to any annual
bonus or annual cash incentive plan maintained by Sierra in respect of
the fiscal year ending immediately prior to the fiscal year in which
occurs the Date of Termination or, if higher, immediately prior to the
fiscal year in which occurs the first event or circumstance
constituting Good Reason.
(B) For the thirty-six (36) month period immediately
following the Date of Termination, the Company shall arrange to provide
the Executive and his dependents life, disability, accident and health
insurance benefits substantially similar to those provided to the
Executive and his dependents immediately prior to the Date of
Termination or, if more favorable to the Executive, those provided to
the Executive and his dependents immediately prior to the first
occurrence of an event or circumstance constituting Good Reason, at no
greater cost to the Executive than the cost to the Executive
immediately prior to such date or occurrence; provided, however, that,
-------- -------
unless the Executive consents to a different method (after taking into
account the effect of such method on the calculation of "parachute
payments" pursuant to Section 6.2 hereof), such health insurance
benefits shall be provided through a third-party insurer. Benefits
otherwise receivable by the Executive pursuant to this Section 6.1(B)
shall be reduced to the extent benefits of the same type are received
by or made available to the Executive during the thirty-six (36) month
period following the Executive's termination of employment (and any
such benefits received by or made available to the Executive shall be
reported to the Company by the Executive); provided, however, that the
-------- -------
Company shall reimburse the Executive for the excess, if any, of the
cost of such benefits to the Executive over such cost immediately prior
to the Date of Termination or, if more favorable to the Executive, the
first occurrence of an event or circumstance constituting Good Reason.
If the Severance Payments shall be decreased pursuant to Section 6.2
hereof, and the Section 6.1(B) benefits which remain payable after the
application of Section 6.2 hereof are thereafter reduced pursuant to
the immediately preceding sentence, the Company shall, no later than
five (5) business days following such reduction, pay to the Executive
the least of (a) the amount of
4
the decrease made in the Severance Payments pursuant to Section 6.2
hereof, (b) the amount of the subsequent reduction in these Section 6.1
(B) benefits, or (c) the maximum amount which can be paid to the
Executive without being, or causing any other payment to be,
nondeductible by reason of Section 280G of the Code.
(C) Notwithstanding any provision of any annual or
long-term incentive plan to the contrary, the Company shall pay to the
Executive a lump sum amount, in cash, equal to the sum of (i) any
unpaid incentive compensation which has been allocated or awarded to
the Executive for a completed fiscal year or other measuring period
preceding the Date of Termination under any such plan and which, as of
the Date of Termination, is contingent only upon the continued
employment of the Executive to a subsequent date, and (ii) a pro rata
portion to the Date of Termination of the aggregate value of all
contingent incentive compensation awards to the Executive for all then
uncompleted periods under any such plan, calculated as to each such
award by multiplying the award that the Executive would have earned on
the last day of the performance award period, assuming the achievement,
at the target level of the individual and corporate performance goals
established with respect to such award, by the fraction obtained by
dividing the number of full months and any fractional portion of a
month during such performance award period through the Date of
Termination by the total number of months contained in such performance
award period.
(D) In addition to the retirement benefits to which
the Executive is entitled under each Pension Plan or any successor plan
thereto, the Company shall pay the Executive a lump sum amount, in
cash, equal to the excess of (i) the actuarial equivalent of the
aggregate retirement pension (taking into account any early retirement
subsidies associated therewith and determined as a straight life
annuity commencing at the date (but in no event earlier than the third
anniversary of the Date of Termination) as of which the actuarial
equivalent of such annuity is greatest) which the Executive would have
accrued under the terms of all Pension Plans (without regard to any
amendment to any Pension Plan made subsequent to a Change in Control
and on or prior to the Date of Termination, which amendment adversely
affects in any manner the computation of retirement benefits
thereunder), determined as if the Executive were fully vested
thereunder and had accumulated (after the Date of Termination)
thirty-six (36) additional months of service credit thereunder and had
been credited under each Pension Plan during such period with
compensation equal to the Executive's compensation (as defined in such
Pension Plan) during the twelve (12) months immediately preceding the
Date of Termination or, if higher, during the twelve months immediately
prior to the first occurrence of an event or circumstance constituting
Good Reason, over (ii) the actuarial equivalent of the aggregate
retirement pension (taking into account any early retirement subsidies
associated therewith and determined as a straight life annuity
commencing at
5
the date (but in no event earlier than the Date of Termination) as of
which the actuarial equivalent of such annuity is greatest) which the
Executive had accrued pursuant to the provisions of the Pension Plans
as of the Date of Termination. For purposes of this Section 6.1(D),
"actuarial equivalent" shall be determined using the same assumptions
utilized under the Sierra Pacific Power Company Retirement Plan
immediately prior to the Date of Termination. or, if more favorable to
the Executive, immediately prior to the first occurrence of an event or
circumstance constituting Good Reason.
(E) If the Executive would have become entitled to
benefits under Sierra's post-retirement health care or life insurance
plans, as in effect immediately prior to the Date of Termination or, if
more favorable to the Executive, as in effect immediately prior to the
first occurrence of an event or circumstance constituting Good Reason,
had the Executive's employment terminated at any time during the period
of thirty-six (36) months after the Date of Termination, the Company
shall provide such post-retirement health care or life insurance
benefits to the Executive and the Executive's dependents commencing on
the later of (i) the date on which such coverage would have first
become available and (ii) the date on which benefits described in
subsection (B) of this Section 6.1 terminate.
6.2 (A) Notwithstanding any other provisions of this
Agreement, in the event that any payment or benefit received or to be received
by the Executive in connection with a Change in Control or the termination of
the Executive's employment (whether pursuant to the terms of this Agreement or
any other plan, arrangement or agreement with the Company, any Person whose
actions result in a Change in Control or any Person affiliated with the Company
or such Person) (all such payments and benefits, including the Severance
Payments, being hereinafter called "Total Payments") would be subject (in whole
or part), to the Excise Tax, then, after taking into account any reduction in
the Total Payments provided by reason of section 280G of the Code in such other
plan, arrangement or agreement, the cash Severance Payments shall first be
reduced, and the non-cash Severance Payments shall thereafter be reduced, to the
extent necessary so that no portion of the Total Payments is subject to the
Excise Tax but only if (A) the net amount of such Total Payments, as so reduced
(and after subtracting the net amount of federal, state and local income taxes
on such reduced Total Payments) is greater than or equal to (B) the net amount
of such Total Payments without such reduction (but after subtracting the net
amount of federal, state and local income taxes on such Total Payments and the
amount of Excise Tax to which the Executive would be subject in respect of such
unreduced Total Payments); provided, however, that the Executive may elect to
-------- -------
have the non-cash Severance Payments reduced (or eliminated) prior to any
reduction of the cash Severance Payments.
(B) For purposes of determining whether and the
extent to which the Total Payments will be subject to the Excise Tax, (i) no
portion of the Total Payments the receipt or enjoyment of which the Executive
shall have waived at such
6
time and in such manner as not to constitute a "payment" within the meaning of
Section 280G(b) of the Code shall be taken into account, (ii) no portion of the
Total Payments shall be taken into account which, in the opinion of tax counsel
("Tax Counsel") reasonably acceptable to the Executive and selected by the
accounting firm (the "Auditor") which was, immediately prior to the Change in
Control, the Company's independent auditor, does not constitute a "parachute
payment" within the meaning of Section 280G(b)(2) of the Code (including by
reason of Section 280G(b)(4)(A) of the Code) and, in calculating the Excise Tax,
no portion of such Total Payments shall be taken into account which, in the
opinion of Tax Counsel, constitutes reasonable compensation for services
actually rendered, within the meaning of Section 280G(b)(4)(B) of the Code, in
excess of the Base Amount allocable to such reasonable compensation, and (iii)
the value of any non-cash benefit or any deferred payment or benefit included
in the Total Payments shall be determined by the Auditor in accordance with the
principles of Sections 280G(d)(3) and (4) of the Code.
(C) At the time that payments are made under
this Agreement, the Company shall provide the Executive with a written
statement setting forth the manner in which such payments were calculated and
the basis for such calculations including, without limitation, any opinions or
other advice the Company has received from Tax Counsel, the Auditor or other
advisors or consultants (and any such opinions or advice which are in writing
shall be attached to the statement). If the Executive objects to the Company's
calculations, the Company shall pay to the Executive such portion of the
Severance Payments (up to 100% thereof) as the Executive with concurrence of tax
counsel determine are necessary to result in the proper application of
subsection A of this Section 6.2.
6.3 The payments provided in subsections (A), (C) and (D) of
Section 6.1 hereof shall be made not later than the fifth day following the Date
of Termination; provided, however, that if the amounts of such payments, and the
-------- -------
limitation on such payments set forth in Section 6.2 hereof, cannot be finally
determined on or before such day, the Company shall pay to the Executive on such
day an estimate, as determined in good faith by the Executive of the minimum
amount of such payments to which the Executive is clearly entitled, but in no
event to exceed three times the sum of base pay and target annual cash
incentive, and shall pay the remainder of such payments (together with interest
on the unpaid remainder (or on all such payments to the extent the Company fails
to make such payments when due) at 120% of the rate provided in Section
1274(b)(2)(B) of the Code) as soon as the amount thereof can be determined but
in no event later than the thirtieth (30th) day after the Date of Termination.
In the event that the amount of the estimated payments exceeds the amount
subsequently determined to have been due, such excess shall constitute a loan by
the Company to the Executive, payable on the fifth (5th) business day after
demand by the Company (together with interest at 120% of the rate provided in
Section 1274(b)(2)(B) of the Code).
7
6.4 The Company also shall pay to the Executive all legal fees
and expenses incurred by the Executive in disputing in good faith any issue
hereunder relating to the termination of the Executive's employment, in seeking
in good faith to obtain or enforce any benefit or right provided by this
Agreement or in connection with any tax audit or proceeding to the extent
attributable to the application of Section 4999 of the Code to any payment or
benefit provided hereunder. Such payments shall be made within five (5) business
days after delivery of the Executive's written requests for payment accompanied
with such evidence of fees and expenses incurred as the Company reasonably may
require.
6.5 Notwithstanding any other provision of this agreement,
except as otherwise permitted by this Agreement, if the executive is entitled to
and claims benefits under or pursuant to any other change in control agreement
entered into between Company or Sierra and the executive, or any terms or
conditions thereunder, the executive shall not be entitled to any of the
severance benefits or any other benefits under this agreement or terms or
conditions of this agreement.
7. Termination Procedures and Compensation During Dispute.
------------------------------------------------------
7.1 Notice of Termination. After a Change in Control or
---------------------
potential Change in Control and during the Term, any purported termination of
the Executive's employment (other than by reason of death) shall be communicated
by written Notice of Termination from one party hereto to the other party hereto
in accordance with Section 10 hereof. For purposes of this Agreement, a "Notice
of Termination" shall mean a notice which shall indicate the specific
termination provision in this Agreement relied upon and shall set forth in
reasonable detail the facts and circumstances claimed to provide a basis for
termination of the Executive's employment under the provision so indicated.
Further, a Notice of Termination for Cause is required to include a copy of a
resolution duly adopted by the affirmative vote of not less than three-quarters
(3/4) of the entire membership of the Board at a meeting of the Board which was
called and held for the purpose of considering such termination (after
reasonable notice to the Executive and an opportunity for the Executive,
together with the Executive's counsel, to be heard before the Board) finding
that, in the good faith opinion of the Board, the Executive was guilty of
conduct set forth in clause (i) or (ii) of the definition of Cause herein, and
specifying the particulars thereof in detail.
7.2 Date of Termination. "Date of Termination," with respect
-------------------
to any purported termination of the Executive's employment after a Change in
Control or potential Change in Control and during the Term, shall mean (i) if
the Executive's employment is terminated for Disability, thirty (30) days after
Notice of Termination is given (provided that the Executive shall not have
returned to the full-time performance of the Executive's duties during such
thirty (30) day period), and (ii) if the Executive's employment is terminated
for any other reason, the date specified in the Notice of Termination (which,
in the case of a termination by Sierra, shall not be less than thirty (30) days
(except in the case of a termination for Cause) and, in the
8
case of a termination by the Executive, shall not be less than fifteen (15)
days nor more than sixty (60) days, respectively, from the date such Notice of
Termination is given).
7.3 Dispute Concerning Termination. If within fifteen (15)
------------------------------
days after any Notice of Termination is given, or, if later, prior to the Date
of Termination (as determined without regard to this Section 7.3), the party
receiving such Notice of Termination notifies the other party that a dispute
exists concerning the termination, the Date of Termination shall be extended
until the earlier of (i) the date on which the Term ends or (ii) the date on
which the dispute is finally resolved, either by mutual written agreement of the
parties or by a final judgment, order or decree of an arbitrator or a court of
competent jurisdiction (which is not appealable or with respect to which the
time for appeal therefrom has expired and no appeal has been perfected);
provided, however, that the Date of Termination shall be extended for a period
- -------- -------
not to exceed six months by a notice of dispute given by the Executive and then
only if such notice is given in good faith and the Executive pursues the
resolution of such dispute with reasonable diligence and agrees to reimburse the
Company for all compensation received from and after the date of termination
specified in Section 7.2 in the event the dispute is not resolved in the
Executive's favor.
7.4 Compensation During Dispute. If a purported termination
----------------------------
occurs following a Change in Control or potential Change in Control and during
the Term and the Date of Termination is extended in accordance with Section 7.3
hereof, the Company shall continue to pay the Executive the full compensation in
effect when the notice giving rise to the dispute was given (including, but not
limited to, salary) and continue the Executive as a participant in all
compensation, benefit and insurance plans in which the Executive was
participating when the notice giving rise to the dispute was given, until the
Date of Termination, as determined in accordance with Section 7.3 hereof.
Amounts paid under this Section 7.4 are in addition to all other amounts due
under this Agreement (other than those due under Section 5.2 hereof) and shall
not be offset against or reduce any other amounts due under this Agreement,
except that if the notice of dispute is given by the Executive and the term is
extended pursuant to Section 7.3 beyond the date specified in accordance with
Section 7.2 and the Executive does not prevail in his dispute, Executive shall
reimburse to and refund to the Company all compensation paid after the
termination date specified in Section 7.2.
8. No Mitigation. The Company agrees that, if the Executive's
-------------
employment with Sierra terminates during the Term, the Executive is not required
to seek other employment or to attempt in any way to reduce any amounts payable
to the Executive by the Company pursuant to Section 6 hereof or Section 7.4
hereof. Further, the amount of any payment or benefit provided for in this
Agreement (other than Section 6.1(B) hereof) shall not be reduced by any
compensation earned by the Executive as the result of employment by another
employer, by retirement
9
benefits, by offset against any amount claimed to be owed by the Executive to
the Company, or otherwise.
9. Successors; Binding Agreement.
-----------------------------
9.1 In addition to any obligations imposed by law upon any
successor to the Company, 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 the Company to expressly
assume and agree to perform this Agreement in the same manner and to the same
extent that the Company would be required to perform it if no such succession
had taken place. Failure of 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 the Company in
the same amount and on the same terms as the Executive would be entitled to
hereunder if the Executive were to terminate the Executive's employment for Good
Reason after 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.
9.2 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 shall die while any amount would still be payable to the Executive
hereunder (other than amounts which, by their terms, terminate upon the death of
the Executive) 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 executors, personal representatives or administrators of the
Executive's estate.
10. Notices. For the purpose of this Agreement, notices and
-------
all other communications provided for in the Agreement shall be in writing and
shall be deemed to have been duly given when delivered or mailed by United
States registered mail, return receipt requested, postage prepaid, addressed, if
to the Executive, to the address inserted below the Executive's signature on the
final page hereof and, if to the Company, to the address set forth below, or to
such other address as either party may have furnished to the other in writing in
accordance herewith, except that notice of change of address shall be effective
only upon actual receipt:
To the Company:
Sierra Power Resources
6226 West Sahara Avenue
Las Vegas, Nevada 89146
Attention: General Counsel
10
11. Miscellaneous. No provision of this Agreement may be
-------------
modified, waived or discharged unless such waiver, modification or discharge is
agreed to in writing and signed by the Executive and the company, acting
through such officer as may be specifically designated by the Board. No waiver
by either party hereto at any time of any breach by the other party hereto of,
or of any lack of compliance with, any condition or provision of this Agreement
to be performed by such other party shall be deemed a waiver of similar or
dissimilar provisions or conditions at the same or at any prior or subsequent
time. This Agreement supersedes any other agreements or representations, oral
or otherwise, express or implied, with respect to the subject matter hereof
which have been made by either party; provided, however, that this Agreement
-------- -------
shall supersede any agreement setting forth the terms and conditions of the
Executive's employment with Sierra only in the event that the Executive's
employment with Sierra is terminated on or following a Change in Control or
potential Change in Control, by Sierra other than for Cause or by the Executive
other than for Good Reason. The validity, interpretation, construction and
performance of this Agreement shall be governed by the laws of the State of
Nevada. All references to sections of the Exchange Act or the Code shall be
deemed also to refer to any successor provisions to such sections. Any payments
provided for hereunder shall be paid net of any applicable withholding required
under federal, state or local law and any additional withholding to which the
Executive has agreed. The obligations of the Company and the Executive under
this Agreement which by their nature may require either partial or total
performance after the expiration of the Term (including, without limitation,
those under Sections 6 and 7 hereof) shall survive such expiration.
12. Validity.
--------
12.1 The invalidity or unenforceability of any provision of
this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement, which shall remain in full force and effect.
13. Counterparts. This Agreement may be executed in several
------------
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
14. Settlement of Dispute; Arbitration.
----------------------------------
14.1 All claims by the Executive for benefits under this
Agreement shall be directed to and determined by the Board and shall be in
writing. Any denial by the Board of a claim for benefits under this Agreement
shall be delivered to the Executive in writing and shall set forth the specific
reasons for the denial and the specific provisions of this Agreement relied
upon. The Board shall afford a reasonable opportunity to the Executive for a
review of the decision denying a claim and shall further allow the Executive to
appeal to the Board a decision of the Board
11
within sixty (60) days after notification by the Board that the Executive's
claim has been denied.
14.2 Any further dispute or controversy arising under or in
connection with this Agreement shall be settled exclusively by arbitration in
Las Vegas, Nevada in accordance with the rules of the American Arbitration
Association then in effect; provided, however, that the evidentiary standards
-------- -------
set forth in this Agreement shall apply. Judgment may be entered on the
arbitrator's award in any court having jurisdiction. Notwithstanding any
provision of this Agreement to the contrary, the Executive shall be entitled to
seek specific performance of the Executive's right to be paid until the Date of
Termination during the pendency of any dispute or controversy arising under or
in connection with this Agreement.
15. Definitions. For purposes of this Agreement, the
-----------
following terms shall have the meanings indicated below:
(A) "Affiliate" shall have the meaning set forth in Rule 12b-2
promulgated under Section 12 of the Exchange Act or any successor replacement
rule.
(B) "Auditor" shall have the meaning set forth in Section 6.2
hereof.
(C) "Base Amount" shall have the meaning set forth in Section
280G(b)(3) of the Code.
(D) "Beneficial Owner" shall have the meaning set forth in
Rule 13d-3 under the Exchange Act.
(E) "Board" shall mean the Board of Directors of the Company.
(F) "Cause" for termination by Sierra of the Executive's
employment shall mean (i) the willful and continued failure by the Executive to
substantially perform the Executive's duties with Sierra (other than any such
failure resulting from the Executive's incapacity due to physical or mental
illness or any such actual or anticipated failure after the issuance of a Notice
of Termination for Good Reason by the Executive pursuant to Section 7.1 hereof)
after a written demand for substantial performance is delivered to the Executive
by the Board, which demand specifically identifies the manner in which the Board
believes that the Executive has not substantially performed the Executive's
duties, or (ii) the willful engaging by the Executive in conduct which is
demonstrably and materially injurious to Sierra, monetarily or otherwise. For
purposes of clauses (i) and (ii) of this definition, (x) no act, or failure to
act, on the Executive's part shall be deemed "willful" unless done, or omitted
to be done, by the Executive not in good faith and without reasonable belief
that the Executive's act, or failure to act, was in the best interest of Sierra
and (y) in the event of a dispute concerning the application of this provision,
no claim by Sierra
12
that Cause exists shall be given effect unless Sierra establishes to the Board
by clear and convincing evidence that Cause exists.
(G) A "Change in Control" shall be deemed to have occurred if
the event set forth in any one of the following paragraphs shall have occurred:
(I) any Person is or becomes the Beneficial Owner,
directly or indirectly, of securities of the Company (not
including in the securities beneficially owned by such Person
any securities acquired directly from the Company or its
affiliates) representing 30% or more of the combined voting
power of the Company's then outstanding securities, excluding
any Person who becomes such a Beneficial Owner in connection
with a transaction described in clause (i) of paragraph (III)
below; or
(II) the following individuals cease for any reason
to constitute a majority of the number of directors then
serving: individuals who, on the date hereof, constitute the
Board and any new director (other than a director whose
initial assumption of office is in connection with an actual
or threatened election contest, including but not limited to a
consent solicitation, relating to the election of directors of
the Company) whose appointment or election by the Board or
nomination for election by the Company's stockholders was
approved or recommended by a vote of at least two-thirds (2/3)
of the directors then still in office who either were
directors on the date hereof or whose appointment, election or
nomination for election was previously so approved or
recommended; or
(III) there is consummated a merger or consolidation
of the Company or any direct or indirect subsidiary of the
Company with any other corporation, other than (i) a merger or
consolidation which would result in the voting securities of
the Company outstanding immediately prior to such merger or
consolidation continuing to represent (either by remaining
outstanding or by being converted into voting securities of
the surviving entity or any parent thereof), in combination
with the ownership of any trustee or other fiduciary holding
securities under an employee benefit plan of the Company or
any subsidiary of the Company, at least 66.66% of the combined
voting power of the securities of the Company or such
surviving entity or any parent thereof outstanding immediately
after such merger or consolidation, or (ii) a merger or
consolidation effected to implement a recapitalization of the
Company (or similar transaction) in which no Person is or
becomes the Beneficial Owner, directly or indirectly, of
securities of the Company (not including in the securities
Beneficially Owned by such Person any securities acquired
directly from the Company or its Affiliates other than in
connection with the acquisition by the Company
13
or its Affiliates of a business) representing 30% or more of
the combined voting power of the Company's then outstanding
securities; or
(IV) the stockholders of the Company or a court or
regulatory agency having juridiction over the matter approve
a plan of complete liquidation or dissolution of the Company
or there is consummated an agreement for or regulatory agency
having juridiction over the matter approve a plan approves
the sale or disposition by the Company of all or
substantially all of the Company's assets, other than a sale
or disposition by the Company of all or substantially all of
the Company's assets to an entity, at least 66.66% of the
combined voting power of the voting securities of which are
owned by stockholders of the Company in substantially the
same proportions as their ownership of the Company
immediately prior to such sale.
(V) There is (a) consummated a sale of a majority of
-
the issued and outstanding stock of Sierra Pacific Power
Company or Nevada Power Company, and/or there is consummated
an agreement for the sale or disposition by Sierra Pacific
Power Company or Nevada Power Company of all or substantially
all of either of their assets, or a plan of complete
liquidation or dissolution or sale or disposition of all or
substantially all of the assets of either Sierra Pacific Power
Company or Nevada Power Company is approved or adopted by the
stockholders or any court or agency having jurisdiction over
the matter.
Notwithstanding the foregoing, except for Sections G(IV) or (V) described
above, a "Change in Control" shall not be deemed to have occurred by virtue of
the consummation of any transaction or series of integrated transactions
immediately following which the record holders of the common stock of the
Company immediately prior to such transaction or series of transactions
continue to have substantially the same proportionate ownership in an entity
which owns all or substantially all of the assets of the Company immediately
following such transaction or series of transactions.
(H) "Code" shall mean the Internal Revenue Code of 1986, as
amended from time to time.
(I) "Company" shall mean Sierra Pacific Resources and, except
in determining under Section 15(G) hereof whether or not any Change in Control
of the Company has occurred, shall include any successor to its business and/or
assets which assumes and agrees to perform this Agreement by operation of law,
or otherwise.
14
(J) "Date of Termination" shall have the meaning set forth in
Section 7.2 hereof.
(K) "Disability" shall be deemed the reason for the
termination by Sierra of the Executive's employment, if, 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
Sierra for a period of six (6) consecutive months, Sierra shall have given the
Executive a Notice of Termination for Disability, and, within thirty (30) days
after such Notice of Termination is given, the Executive shall not have returned
to the full-time performance of the Executive's duties.
(L) "Exchange Act" shall mean the Securities Exchange Act of
1934, as amended from time to time.
(M) "Executive" shall mean the individual named in the first
paragraph of this Agreement.
(N) "Good Reason" for termination by the Executive of the
Executive's employment shall mean the occurrence (without the Executive's
express written consent) after any Change in Control, or prior to a Change in
Control under the circumstances described in clauses (ii) and (iii) of the
second sentence of Section 6.1 hereof (treating all references in paragraphs (I)
through (VII) below to a "Change in Control" as references to a "Potential
Change in Control"), of any one of the following acts by Sierra, or failures by
Sierra to act, unless, in the case of any act or failure to act described in
paragraphs (I), (IV), (V) or (VI) below, such act or failure to act is corrected
prior to the Date of Termination specified in the Notice of Termination given in
respect thereof:
(I) the assignment to the Executive of any duties
substantially below the Executive's status as the most senior
executive officer of Sierra or a substantial adverse
reduction in the nature or status of the Executive's
responsibilities from those in effect immediately prior to
the Change in Control other than any such alteration
primarily attributable to the fact that the Company may no
longer be a public company;
(II) a reduction by Sierra in the Executive's annual
base salary as in effect on the date hereof or as the same may
be increased from time to time except for across-the-board
salary reductions similarly affecting all senior executives of
Sierra and all senior executives of any Person in control of
Sierra;
(III) the failure by Sierra to pay to the Executive
any portion of the Executive's current compensation except
pursuant to an across-the-board compensation deferral or good
faith reduction in compensation necessitated by unfavorable
exigent business
15
conditions or circumstances similarly affecting all senior
executives of Sierra and all senior executives of any Person
in control of Sierra, or to pay to the Executive any portion
of an installment of deferred compensation under any deferred
compensation program of Sierra, within thirty (30) days of the
date such compensation is due;
(IV) the failure by Sierra to continue in effect any
compensation plan in which the Executive participates
immediately prior to the Change in Control which is material
to the Executive's total compensation, including but not
limited to the Company's Officer and Senior Managers Annual
Incentive Plan, Executive Long-Term Incentive Plan, Long-Term
Performance Share Program and Stock Option Plan or any
substitute plans adopted prior to the Change in Control,
unless an equitable arrangement (embodied in an ongoing
substitute or alternative plan) has been made with respect to
such plan, or the failure by Sierra to continue the
Executive's participation therein (or in such substitute or
alternative plan) on a basis not materially less favorable,
both in terms of the amount or timing of payment of benefits
provided and the level of the Executive's participation
relative to other participants, as existed immediately prior
to the Change in Control;
(V) the failure by Sierra to continue to provide the
Executive with benefits substantially similar to those enjoyed
by the Executive under any of Sierra's pension, savings, life
insurance, medical, health and accident, or disability plans
in which the Executive was participating immediately prior to
the Change in Control (except for across the board changes
similarly affecting all senior executives of Sierra and all
senior executives of any Person in control of Sierra), the
taking of any other action by Sierra which would directly or
indirectly materially reduce any of such benefits or deprive
the Executive of any material fringe benefit enjoyed by the
Executive at the time of the Change in Control, or the failure
by Sierra to provide the Executive with substantially the same
number of paid vacation days to which the Executive is
entitled on the basis of years of service with Sierra in
accordance with Sierra's normal vacation policy in effect at
the time of the Change in Control; or
(VI) any purported termination of the Executive's
employment which is not effected pursuant to a Notice of
Termination satisfying the requirements of Section 7.1 hereof;
for purposes of this Agreement, no such purported termination
shall be effective.
The Executive's right to terminate the Executive's employment
for Good Reason shall not be affected by the Executive's incapacity due to
physical or mental illness. The Executive's continued employment shall not
constitute consent
16
to, or a waiver of rights with respect to, any act or failure to act
constituting Good Reason hereunder.
For purposes of any determination regarding the existence of
Good Reason, any claim by the Executive that Good Reason exists shall be
presumed to be correct unless the Company establishes to the Board by clear and
convincing evidence that Good Reason does not exist.
(O) "Notice of Termination" shall have the meaning set forth
in Section 7.1 hereof.
(P) "Pension Plan" shall mean any tax-qualified, supplemental
or excess benefit pension plan maintained by Sierra and any other plan or
agreement entered into between the Executive and Sierra which is designed to
provide the Executive with supplemental or additional retirement benefits or
credits.
(Q) "Person" shall have the meaning given in Section 3(a)(9)
of the Exchange Act, as modified and used in Sections 13(d) and 14(d) thereof,
except that such term shall not include (i) the Company or any of its
subsidiaries, (ii) a trustee or other fiduciary holding securities under an
employee benefit plan of the Company or any of its Affiliates, (iii) an
underwriter temporarily holding securities pursuant to an offering of such
securities, or (iv) a corporation owned, directly or indirectly, by the
stockholders of the Company in substantially the same proportions as their
ownership of stock of the Company.
(R) "Potential Change in Control" shall be deemed to have
occurred if the event set forth in any one of the following paragraphs shall
have occurred:
(I) the Company enters into an agreement, the
consummation of which would result in the occurrence of a
Change in Control;
(II) the Company or any Person publicly announces an
intention to take or to consider taking actions which, if
consummated, would constitute a Change in Control;
(III) any Person becomes the Beneficial Owner,
directly or indirectly, of securities of the Company
representing 15% or more of either the then outstanding shares
of common stock of the Company or the combined voting power of
the Company's then outstanding securities (not including in
the securities beneficially owned by such Person any
securities acquired directly from the Company or its
affiliates); or
(IV) the Board adopts a resolution to the effect
that, for purposes of this Agreement, a Potential Change in
Control has occurred.
17
(S) "Retirement" shall be deemed the reason for the
termination by the Executive of the Executive's employment if such employment is
terminated in accordance with Sierra's retirement policy, including early
retirement, generally applicable to its salaried employees.
(T) "Severance Payments" shall have the meaning set forth in
Section 6.1 hereof.
(U) "Tax Counsel" shall have the meaning set forth in Section
6.2 hereof.
(V) "Term" shall mean the period of time described in Section
2 hereof (including any extension, continuation or termination described
therein).
(W) "Total Payments" shall mean those payments so described in
Section 6.2 hereof.
Sierra Pacific Resources
By:____________________________________
Name:
Title:
_______________________________________
Dennis D.Schiffel
18