Exhibit 10(a)1
Form of Change in Control Agreement
Between
New Century Energies, Inc.
and
(Executive Name)
THIS AGREEMENT is made and entered into effective as of the 1st day
of August, 1997 by and between NEW CENTURY ENERGIES, INC., a Delaware
corporation (hereinafter "NCE") and (Executive Name) (hereinafter, the
"Executive").
WHEREAS Executive is a valuable employee of NCE and an integral
part of its management; and
WHEREAS NCE wishes to encourage Executive to continue Executive's
career with and services to NCE for the period during and after an actual or
threatened Change In Control; and
WHEREAS the Board of Directors of NCE has determined that it
would be in the best interests of NCE and its shareholders to assure
continuity in the management of NCE in the event of a Change In Control by
entering into this Agreement with Executive;
NOW, THEREFORE, in consideration of the services to be performed
by Executive for NCE in the future, as well as the promises and covenants
contained in this Agreement, the parties agree as follows:
Sec. 1. DEFINITIONS. For purposes of this Agreement, the
following capitalized terms shall have the meanings prescribed below:
Sec. 1.1 Board. "Board" means the Board of Directors of NCE.
Except where this Agreement requires that action be taken by a specified
percentage or number of the members of the Board, action on behalf of the
Board may be taken by its Executive Committee, or by any other committee or
individual specifically authorized to act on behalf of the Board by
resolution of the Board.
Sec. 1.2 Change In Control. A "Change In Control" is the
occurrence of any of the events described in subsections (a) through (d)
below:
(a) Either (i) receipt by NCE of a report on Schedule 13D, or an
amendment to such a report, filed with the Securities and Exchange
Commission pursuant to Section 13(d) of the Securities Exchange Act
of 1934 (the "1934 Act") disclosing that any person (as such term is
used in Section 13(d) of the 1934 Act) ("Person"), is the beneficial
owner, directly or indirectly, of twenty percent or more of the
combined voting power of the outstanding stock of NCE, or (ii) actual
knowledge by the Board of facts on the basis of which any Person is
required to file such a report on Schedule 13D, or to make an
amendment to such a report, with the SEC (or would be required to
file such a report or amendment upon the lapse of the applicable
period of time specified in Section 13(d) of the 1934 Act) disclosing
that such Person is the beneficial owner, directly or indirectly, of
twenty percent or more of the combined voting power of the
outstanding stock of NCE.
(b) Purchase by any Person other than NCE or a wholly-owned subsidiary
of NCE, of shares pursuant to a tender or exchange offer to acquire
any stock of NCE (or securities convertible into stock) for cash,
securities or any other consideration provided that, after
consummation of the offer, such Person is the beneficial owner (as
defined in Rule 13d-3 under the 1934 Act), directly or indirectly,
of twenty percent or more of the combined voting power of the
outstanding stock of NCE (calculated as provided in paragraph (d) of
Rule 13d-3 under the 1934 Act in the case of rights to acquire
stock).
(c) Approval by the shareholders of NCE of a transaction described in
any of the following paragraphs:
(1) Any consolidation or merger of NCE in which NCE is not the
continuing or surviving corporation or pursuant to which shares
of stock of NCE would be converted into cash, securities or
other property, other than a consolidation or merger of NCE in
which holders of its stock immediately prior to the
consolidation or merger own at least a majority of the combined
voting power of the outstanding stock of the surviving
corporation immediately after the consolidation or merger (or
at least a majority of the combined voting power of the
outstanding stock of a corporation which owns directly or
indirectly all of the voting stock of the surviving
corporation).
(2) Any consolidation or merger in which NCE is the continuing or
surviving corporation but in which the shareholders of NCE
immediately prior to the consolidation or merger do not hold at
least a majority of the combined voting power of the
outstanding stock of the continuing or surviving corporation
(except where such holders of stock hold at least a majority of
the combined voting power of the outstanding stock of the
corporation which owns directly or indirectly all of the voting
stock of NCE).
(3) Any sale, lease, exchange or other transfer (in one transaction
or a series of related transactions) of all or substantially
all the assets of NCE (except such a transfer to a corporation
which is wholly owned, directly or indirectly, by NCE), or any
complete liquidation of NCE.
(4) Any merger or consolidation of NCE where, after the merger or
consolidation, one Person owns 100% of the shares of stock of
NCE (except where the holders of NCE's voting stock immediately
prior to such merger or consolidation own at least a majority
of the combined voting power of the outstanding stock of such
Person immediately after such merger or consolidation).
(d) A change in the majority of the members of the Board within a
24-month period unless the election or nomination for election by
NCE's shareholders of each new director was approved by the vote of
at least two-thirds of the directors then still in office who were
in office at the beginning of the 24-month period.
2
A Change In Control occurs on the date that an event described in subsection
(a), (b) or (d) occurs. In the case of a transaction described in subsection
(c) which is subject to approval by the shareholders, the Change In Control
occurs on the date the transaction is completed.
Sec. 1.3 Code. "Code" means the Internal Revenue Code of 1986,
as amended.
Sec. 1.4 Disability. "Disability" or "Disabled" means the
inability of Executive as a result of physiological or psychological
condition to perform the essential functions of any position held by
Executive on or after the date a Change In Control occurred.
Sec. 1.5 Discharge for Cause. Solely for purposes of this
Agreement, "Discharge for Cause" means a termination of Executive's
employment by NCE because of Executive's fraud or dishonesty which has
resulted, or is likely to result, in material economic damage to NCE, as
determined in good faith by a vote of two-thirds of the non-employee
directors at a meeting of the Board at which Executive has been afforded an
opportunity to be heard.
Sec. 1.6 Good Reason. "Good Reason" means the occurrence, on or
after the date of a Change In Control and without Executive's written
consent, of any of the following events or circumstances, as determined in
good faith by Executive:
(a) A reduction in Executive's base salary in effect immediately prior
to the Change In Control.
(b) A material reduction in Executive's target opportunity, measured as
a percentage of base salary, to earn annual or long-term incentives
or bonuses.
(c) A failure to provide to Executive employee benefits and perquisites
(other than amounts described in subsections (a) and (b)) which are
reasonably equivalent in the aggregate to those provided to
Executive immediately prior to the Change In Control.
(d) A material reduction by NCE of Executive's job duties and
responsibilities that existed immediately prior to the Change In
Control, including but not limited to the assignment to Executive of
duties and responsibilities which are materially inconsistent with
those of Executive's position immediately prior to the Change In
Control.
(e) Assignment or reassignment of Executive to another place of
employment that is more than 50 miles (measured by the shortest
paved highway route) from Executive's place of employment
immediately prior to the Change In Control.
(f) A failure by NCE to pay to Executive when due any deferred
compensation that was deferred by Executive prior to the Change in
Control.
(g) A failure by NCE to comply with the terms and conditions of this
Agreement.
Notwithstanding the foregoing:
3
(aa)An event or circumstance shall not constitute Good Reason unless
Executive provides written notice to NCE specifying the basis for
Executive's determination that Good Reason exists within six months
after the first day on which such Good Reason existed. If NCE cures
the event or circumstance within 30 days of receiving such written
notice (including retroactive restoration of any lost compensation
or benefits, where reasonably possible), Good Reason shall be deemed
never to have existed.
(bb)NCE and Executive may, upon mutual written agreement, waive any
provision of this Section which would otherwise constitute Good
Reason.
Sec. 2. TERM OF AGREEMENT. This Agreement shall become
effective as of the date written in the first paragraph of this Agreement and
shall be for an initial term ending on December 31, 1999. The term of this
Agreement shall be automatically extended on each December 31 for one
additional calendar year, unless NCE provides written notice to Executive
prior to a December 31 that this sentence shall cease to apply on that
December 31. (For example, on December 31, 1997, the term will be
automatically extended to December 31, 2000 unless NCE gives written notice
to Executive prior to December 31, 1997.) This Agreement will apply to any
Change in Control that occurs during the term of this Agreement.
Sec. 3. ELIGIBILITY FOR BENEFITS. Except as provided in
Sec. 3.1, if Executive is a full-time employee of NCE on the date a Change In
Control occurs, Executive shall be entitled to the benefits provided under
Sec. 4 following the occurrence of either of the following events:
(a) Executive's employment is involuntarily terminated by NCE during the
36-month period following the Change In Control.
(b) Executive terminates employment with NCE for Good Reason during the
36-month period following the Change In Control; provided that the
period in which NCE could correct the Good Reason has expired.
Sec. 3.1 Disqualification from Benefits. Notwithstanding
Sec. 3, Executive shall not be eligible for any benefits under this Agreement
under any of the following circumstances:
(a) NCE terminates Executive's employment due to Discharge for Cause.
(b) Executive's employment with NCE terminates due to Disability or
Executive's death.
(c) Executive voluntarily terminates employment without Good Reason.
For purposes of this Agreement, a voluntary termination of
employment includes any termination that qualifies as a form of
"retirement" under any employee pension benefit plan maintained by
NCE that covers Executive; provided that Good Reason does not exist
at the time of such retirement.
(d) Executive's employment is terminated pursuant to any policy of NCE
that requires or permits mandatory retirement of Executive upon
attainment of a specified age and that complies with applicable laws
and regulations.
4
If this Sec. 3.1 applies, Executive shall be subject to the normal policies
of NCE regarding such events and shall be eligible for only such compensation
and benefits as would apply if this Agreement did not exist.
Sec. 3.2 Anticipation of Change In Control. If (i) Executive's
employment is involuntarily terminated by NCE, or Executive terminates such
employment with NCE for Good Reason, on or after the date on which a public
announcement is made by NCE of its intention to participate in a transaction
which would constitute a Change In Control, (ii) Executive would be eligible
under Sec. 3 if the Change In Control had already occurred, (iii) Sec. 3.1
does not apply, and (iv) the Change In Control actually occurs, then
Executive's employment shall be deemed solely for purposes of this Agreement
to have terminated under Sec. 3 on the date the Change In Control occurred
and Executive shall be entitled to the benefits provided under Sec. 4.
Sec. 4. BENEFITS. If Executive is eligible under Sec. 3,
Executive will receive the benefits provided under Sec. 4.1 through Sec. 4.5.
Sec. 4.1 Severance Payment. Within five business days after
Executive's termination of employment under Sec. 3 occurs, NCE will pay to
Executive a lump sum equal to two and one-half times the sum of the amounts
determined under subsections (a) and (b):
(a) Executive's annual base salary immediately prior to the Change In
Control.
(b) The average of the short- and long-term bonuses that Executive
received for the two calendar years immediately preceding the date
Executive's employment terminated. For purposes of this subsection:
(1) If Executive's employment terminates during 1997, the amount
under this subsection (b) shall be equal to the target award
payable by NCE for 1997.
(2) If Executive's employment terminates during 1998, the amount
under this subsection (b) shall be equal to the target award
for 1998.
(3) If Executive's employment terminates during 1999, the amount
under this subsection (b) shall be the average of the actual
bonus for 1998 and the target award for 1999.
(4) Any portion of a bonus that was paid or awarded in the form of
NCE stock will be valued for purposes of this subsection (b) at
the closing price for such stock on the New York Stock Exchange
on the most recent business day preceding the date the cash
portion of the award became payable to Executive (disregarding
any election to defer said payment).
The payment under this Sec. 4.1 shall also include any accrued but unpaid
salary and pay for any accrued but unused vacation under NCE's policies which
is outstanding on the date Executive's employment terminates.
5
Sec. 4.2 Stock Options and Restricted Stock. All stock options
granted to Executive which are outstanding on the date of Executive's
termination of employment under Sec. 3 shall become vested, and all
restrictions on restricted shares of NCE stock granted to Executive shall
lapse on that date. All of Executive' outstanding stock options shall be
exercisable as if Executive had remained an employee of NCE during the two
and one-half year period following the termination of Executive's employment.
Sec. 4.3 Continuation of Welfare Benefits. During the 30 month
period following Executive's termination of employment under Sec. 3,
Executive will be eligible for continuation of coverage for Executive and
Executive's eligible dependents under all life insurance, disability,
accident and health insurance coverage in effect at the time Executive's
employment terminated, subject to the following:
(a) Such coverage shall be provided under the same terms and conditions
as apply to similarly situated active employees of NCE during such
period. Executive shall pay to NCE the contribution, if any,
required to be paid for such coverage by similarly situated active
employees of NCE during such period.
(b) If a group insurance carrier refuses to provide the coverage
described in this Sec. 4.3 under its contract issued to NCE, or if
NCE reasonably determines that the coverage required under this Sec.
4.3 would cause a welfare plan sponsored by NCE to violate any
provision of the Code prohibiting discrimination in favor of highly
compensated employees or key employees, NCE will use its best
efforts to obtain for Executive an individual insurance policy
providing comparable coverage. However, if NCE determines in good
faith that comparable coverage cannot be obtained for less than two
times the premium or premium equivalent for such coverage under
NCE's welfare plan or plans, NCE's sole obligation under this Sec.
4.3 with respect to that coverage will be limited to paying to
Executive a monthly amount equal to two times the monthly premium or
premium equivalent for that coverage under NCE's plans.
(c) Benefits provided to Executive or Executive's dependents under this
section will be secondary to any comparable benefits provided by
another employer to the extent permitted by applicable law.
Sec. 4.4 Retirement Benefits. Within five business days after
Executive's employment terminates under Sec. 3 (or as soon thereafter as the
amount payable under this section can reasonably be determined), NCE will pay
Executive a lump sum equal to the sum of the following amounts:
(a) Retirement Plans. The present value of the additional benefit to
which Executive would be entitled under the qualified defined
benefit pension plan and non-qualified supplemental executive
retirement plan, if any, that covered Executive on the date the
termination of employment occurred, determined by assuming that
Executive's employment had continued for an additional 30 months and
that Executive's rate of compensation being recognized by each such
plan immediately prior to the termination of employment had
continued in effect during such period. The "present value" for
purposes of this subsection (a) shall be determined by using the
actuarial equivalent
6
factors specified in the qualified defined benefit pension plan for
determining lump sum distributions (disregarding any restriction on
the size of lump sum distributions allowed).
(b) Savings Plans. The sum of the additional contributions (other than
pre-tax salary deferral contributions by Executive) that would have
been made or credited by NCE to Executive's accounts under each
qualified defined contribution plan and non-qualified supplemental
executive savings plan, if any, that covered Executive on the date
the termination of employment occurred, determined by assuming that:
(1) Executive's employment had continued for an additional 30
months.
(2) Executive's rate of compensation being recognized by each plan
immediately prior to the termination of employment had
continued in effect during such period.
(3) In the case of matching contributions, Executive's rate of
pre-tax salary deferral contributions in effect immediately
prior to the termination of employment had remained in effect
throughout such period.
(4) In the case of discretionary contributions by NCE, NCE
continued to make such contributions during such period at the
rate that applied to the most recent plan year that ended prior
to the termination of employment.
Sec. 4.5 Excise Tax Gross-Up. If Independent Tax Counsel
determines that the aggregate payments made to Executive under this Agreement
and any other payments to Executive from NCE which constitute "parachute
payments" as defined in Code Section 280G, or any successor provision thereto
("Parachute Payments") would be subject to the excise tax imposed by Code
Section 4999 (the "Excise Tax"), then Executive will receive an additional
payment (a "Gross-Up Payment") in an amount determined by Independent Tax
Counsel such that after payment by Executive of all federal and state income
and excise taxes (including any Excise Tax) imposed on the Gross-Up Payment
and any interest or penalties imposed with respect to such taxes, Executive
retains from the Gross-Up Payment an amount equal to the Excise Tax imposed
on the payments.
(a) If Independent Tax Counsel determines that no Excise Tax is payable
by Executive, it shall furnish Executive with a written opinion that
Executive has substantial authority not to report any Excise Tax on
Executive's federal income tax return. If Executive is subsequently
required to make a payment of any Excise Tax, then Independent Tax
Counsel shall determine the grossed-up amount of such payment using
the same principles as applied to calculation of the Gross-Up
Payment (referred to herein as a "Gross-Up Underpayment") and any
such Gross-Up Underpayment shall be promptly paid by NCE to or for
the benefit of Executive.
7
(b) Executive shall notify NCE in writing within 15 days of any claim by
the Internal Revenue Service that, if successful, would require the
payment by NCE of a Gross-Up Payment. If NCE notifies Executive in
writing that it desires to contest such claim and that it will bear
the costs and provide the indemnification as required by this
subsection, Executive shall:
(1) Give NCE any information reasonably requested by NCE relating
to such claim.
(2) Take such action in connection with contesting such claim as
NCE shall reasonably request in writing from time to time,
including, without limitation, accepting legal representation
with respect to such claim by an attorney reasonably selected
by NCE.
(3) Cooperate with NCE in good faith in order to effectively
contest such claim.
(4) Permit NCE to participate in any proceedings relating to such
claim.
NCE shall bear and pay directly all costs and expenses (including
additional interest and penalties) incurred in connection with such
contest and shall indemnify and hold Executive harmless, on an
after-tax basis, for any Excise Tax or income tax, including
interest and penalties with respect thereto, imposed as a result of
such representation and payment of costs and expenses. NCE shall
control all proceedings taken in connection with such contest. If
NCE directs Executive to pay such claim and sue for a refund, NCE
shall advance the amount of such payment to Executive, on an
interest-free basis and shall indemnify and hold Executive harmless,
on an after-tax basis, from any Excise Tax or income tax, including
interest or penalties with respect thereto, imposed with respect to
such advance or with respect to any imputed income with respect to
such advance.
(c) If, after the receipt by Executive of an amount paid or advanced by
NCE pursuant to this Section, Executive becomes entitled to receive
any refund with respect to such Excise Tax, Executive shall within
10 days pay to NCE the Gross-Up Payment or Gross-Up Underpayment
related to the amount of such refund (together with any interest
paid or credited thereon, after adjustment for any taxes applicable
to such interest or repayment).
(d) For purposes of this Sec. 4.5, "Independent Tax Counsel" means a
lawyer, a certified public accountant with a nationally recognized
accounting firm, or a compensation consultant with a nationally
recognized actuarial and benefits consulting firm, with expertise in
the area of executive compensation tax law, who shall be selected by
Executive and shall be reasonably acceptable to NCE. The fees and
disbursements of Independent Tax Counsel shall be paid by NCE.
Sec. 4.6 No Offsets. Executive shall be under no obligation to
seek other employment or otherwise mitigate the amounts payable by NCE under
Sec. 4. There will be no offset against the amounts payable under Sec. 4 on
account of any compensation or earnings from any subsequent employment or
self-employment of Executive, except as provided in Sec. 4.3(c). NCE's
obligations to make the payments provided for this Agreement and otherwise to
perform its
8
obligations hereunder shall not be affected by any set-off, counterclaim,
recoupment, defense or other claim, right or action which NCE may have
against Executive or others, unless Executive has given written consent to
such as set-off or is subject to a final judgment in favor of NCE.
Sec. 5 SOURCE OF PAYMENTS. Except as otherwise provided in this
section, all payments provided in Sec. 4 shall be paid from the general funds
of NCE, and NCE shall not be required to establish a special or separate fund
or otherwise segregate assets to assure payments will be made under this
Agreement.
(a) On or before the date a Change In Control occurs (or as soon as
reasonably possible following a Change In Control for which NCE has
no advance warning), NCE will establish a trust in the form
generally known as a "rabbi trust", and will immediately deposit
into that trust an amount equal to the total of the estimated
amounts to which Executive would become entitled under Sections 4.1,
4.4 and 4.5 in the event the requirements of Sec. 3 are satisfied.
(1) The trustee shall be a national bank or trust company selected
by NCE and reasonably acceptable to Executive.
(2) The amount to be deposited in the trust shall be determined by
an actuary employed by a nationally recognized actuarial and
benefits consulting firm selected by NCE which shall be
reasonably acceptable to Executive.
(b) In the event Executive satisfies the requirements of Sec. 3 and
becomes entitled to payments under Sec. 4, those payments shall be
made from the assets of the trust to the extent those assets are
sufficient. NCE's obligations under this Agreement shall be reduced
to the extent of the payments made from the trust.
(c) If Executive does not become eligible under Sec. 3 within 36 months
after the date a Change In Control occurs, or if an event described
in Sec. 3.1 occurs that makes Executive ineligible for benefits, the
trust shall terminate and its assets shall be returned to NCE.
Notwithstanding the foregoing provisions of this section, it is expressly
understood and agreed that Executive (and any dependent, beneficiary or
estate of Executive who becomes entitled to payments hereunder) shall at all
times be an unsecured creditor of NCE, and shall have no rights to assets of
NCE (including assets held in any trust) that are superior to other unsecured
creditors of NCE. Nothing in this Agreement shall be interpreted as creating
a constructive trust over any assets of NCE or creating a fiduciary
relationship between NCE and Executive or any other person.
Sec. 6 ENFORCEMENT. The rights and obligations created under
this Agreement shall be enforced as follows:
(a) Arbitration. In the event of any dispute or difference between NCE
and Executive with respect to the subject matter or interpretation
of this Agreement or the enforcement of rights hereunder, such
dispute or difference shall be submitted to arbitration. The
arbitrator or arbitrators shall be selected by agreement of the
parties or, if they cannot
9
agree on an arbitrator or arbitrators within 30 days after the date one
party notified the other of the desire to have the question settled
by arbitration, then the arbitrator or arbitrators shall be selected
by the American Arbitration Association (the "AAA") in Denver,
Colorado upon the application of either party. The determination
reached in such arbitration shall be final and binding on both
parties without any right of appeal or further dispute. Execution
of the determination by such arbitrator may be sought in any court
of competent jurisdiction. In any such arbitration or subsequent
proceeding, Executive shall be entitled to seek both legal and
equitable relief and remedies, including but not limited to specific
performance of NCE's obligations under this Agreement. The
arbitrators shall not be bound by judicial formalities and may
abstain from following the strict rules of evidence and shall
interpret this Agreement as an honorable engagement and not merely
as a legal obligation. Unless otherwise agreed by the parties, any
such arbitration shall take place in Denver, Colorado, and shall be
conducted in accordance with the Rules of the AAA.
(b) Costs and Expenses. NCE will pay all fees of the arbitrators,
whether the arbitration is initiated by NCE or Executive. In
addition, NCE will pay, upon written demand from Executive, all
legal fees and expenses which Executive may reasonably incur in
connection with the arbitration or subsequent judicial proceedings
to enforce this Agreement, plus interest on any award at the
applicable federal rate, under Code Section 7872(f)(2); provided,
however, that this sentence shall not apply unless Executive
recovers through such action some amount or benefit (regardless of
size or value) in excess of the amount NCE had offered prior to
commencement of the action.
(c) Survival. The obligations under this Sec. 6 shall survive the
termination of this Agreement for any reason, whether such
termination is by NCE, by Executive, upon the expiration of this
Agreement, or otherwise.
Sec. 7 SUCCESSOR EMPLOYER. If Executive becomes an employee of
another entity as a result of a transaction in which NCE consolidates or
merges into or with such entity or transfers all or substantially all of its
assets to such entity (whether or not the transaction constitutes a Change In
Control), the term "NCE" in this Agreement shall mean such other entity and
this Agreement shall continue in full force and effect. If Executive becomes
an employee of a wholly-owned subsidiary of NCE (or of a successor entity
described in the previous sentence), Executive shall be deemed for purposes
of this Agreement to continue as an employee of NCE (or the successor entity)
while employed by such subsidiary.
Sec. 8 MISCELLANEOUS PROVISIONS.
Sec. 8.1 Amendment. This Agreement may be amended or modified
only in writing, signed by both parties.
Sec. 8.2 Tax Withholding. NCE may withhold from any payments
made under this Agreement all federal, state or other taxes which it
determines to be required pursuant to any law or governmental regulation or
ruling.
10
Sec. 8.3 Death of Executive Following Entitlement to Payments.
If Executive dies after becoming eligible under Sec. 3, but before all
payments provided under Sec. 4 have been made, the remaining payments shall
be made to the beneficiary designated by Executive in the most recent written
instrument filed with NCE prior to Executive's death which specifically
refers to this Agreement. Executive may revoke such a beneficiary
designation at any time, without consent of any beneficiary, and file a new
designation. If no effective beneficiary designation is on file with NCE at
the time of Executive's death, the remaining payments shall be paid to
Executive's estate.
Sec. 8.4 Entire Agreement. This Agreement contains the entire
understanding of the parties with regard to all matters contained herein.
There are no other agreements, conditions or representations, oral or
written, expressed or implied, with regard thereto. This Agreement
supersedes all prior agreements relating to separation payments following a
Change In Control between Executive and NCE or any predecessor to NCE.
However, this Agreement shall not operate to reduce any benefit or
compensation to which Executive is entitled under any plan, policy or program
maintained by NCE that does not specifically relate to payments following a
Change In Control, including but not limited to benefits or compensation
under incentive plans, qualified retirement plans, or nonqualified
supplemental or excess pension or savings plans.
Sec. 8.5 Assignment. NCE may in its sole discretion assign this
Agreement to any entity which succeeds to the business of NCE through merger,
consolidation, a sale of all or substantially all of the assets of NCE, or
any similar transaction. Executive acknowledges that the services to be
rendered by Executive are unique and personal. Accordingly, Executive may
not assign any of Executive's rights or obligations under this Agreement.
Sec. 8.6 Successors. Subject to Sec. 8.5, the provisions of
this Agreement shall be binding upon the parties hereto, upon any successor
to or assign of NCE, and upon Executive's heirs and the personal
representative of Executive or Executive's estate.
Sec. 8.7 No Attachment. Except as required by law, no right to
receive payments under this Agreement shall be subject to anticipation,
commutation, alienation, sale, assignment, encumbrance, charge, pledge or
hypothecation or to execution, attachment, levy or similar process or
assignment by operation of law, and any attempt, voluntary or involuntary, to
effect any such action shall be null, void and of no effect.
Sec. 8.8 Notices. Any notice required to be given under this
Agreement shall be in writing and shall be delivered either in person or by
certified or registered mail, return receipt requested. Any notice by mail
shall be addressed as follows:
If to NCE, to:
New Century Energies, Inc.
1225 17th Street
Denver, Colorado 80202
Attention: Marilyn E. Taylor, Vice President/Human Resources
11
If to Executive, to:
_"Address"___________________
____________________________
____________________________
or to such other addresses as either party may designate in writing to the
other party from time to time.
Sec. 8.9 Waiver of Breach. Any waiver by either party of
compliance with any provision of this Agreement by the other party shall not
operate or be construed as a waiver of any other provision of this Agreement,
or of any subsequent breach by such party of a provision of this Agreement,
unless the waiver specifically states that it is a continuing waiver or that
it applies to other provisions. No waiver by NCE shall be valid unless in
writing and signed by the chief executive officer of NCE. No waiver by
Executive shall be valid unless in writing and signed by Executive.
Sec. 8.10 Severability. If any one or more of the provisions
(or portions thereof) of this Agreement shall for any reason be held by a
final determination of a court of competent jurisdiction to be invalid,
illegal, or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provision (or portions of the
provisions) of this Agreement, and the invalid, illegal or unenforceable
provisions shall be deemed replaced by a provision that is valid, legal and
enforceable and that comes closest to expressing the intention of the parties
hereto.
Sec. 8.11 Governing Law. This Agreement shall be interpreted
and enforced in accordance with the laws of the State of Colorado, without
giving effect to conflict of law principles.
Sec. 8.12 Headings. The headings of sections herein are
included solely for convenience of reference and shall not control the
meaning or interpretation of any of the provisions of this Agreement.
Sec. 8.13 Counterparts. This Agreement may be executed by
either of the parties hereto in counterparts, each of which shall be deemed
to be an original, but all such counterparts shall constitute a single
instrument.
Sec. 9 WAIVER OF SEPARATION AGREEMENT (Applicable to former
Public Service Company of Colorado Executives). Executive is currently a
party to a Separation Agreement with Public Service Company of Colorado
("PSC"), which was originally effective August 22, 1995, and which has been
amended several times prior to the date of this Agreement. (That Separation
Agreement, including all subsequent amendments of it executed prior to August
1, 1997, is hereinafter called the "Separation Agreement".)
Executive is entitled to certain severance payments and other
benefits under the Separation Agreement if Executive's employment terminates
under certain conditions, or if Executive has a "constructive discharge",
following a "change in control" of PSC. Executive understands that the
merger of PSC and Southwestern Public Service Co. to form NCE is a "change in
control" under the Separation Agreement. Paragraph 13 of the Separation
Agreement allows Executive to waive all rights under the Separation Agreement
by executing a written instrument.
In consideration of the benefits described in this Agreement,
Executive hereby waives and surrenders all rights that Executive or any of
Executive's beneficiaries, survivors, heirs, successors
12
or assigns may have under the Separation Agreement against NCE, PSC, or any of
their predecessors, successors or affiliates, either now or at any time in the
future. The waiver includes, but is not limited to, all rights under the
Separation Agreement to severance benefits, continuation of employee benefits,
or increases in benefits provided under employee benefit plans (including
nonqualified supplemental plans). For purposes of Paragraph 13 of the Separation
Agreement, Executive's signature below constitutes a complete, continuing and
irrevocable waiver of all the terms and conditions of the Separation Agreement,
both at the present time and at all times in the future.
IN WITNESS WHEREOF, NCE has caused this Agreement to be executed
by its duly authorized officer, and Executive has executed this Agreement,
all effective as of the date first above written.
EXECUTIVE NEW CENTURY ENERGIES, INC.
__________________________________ By:
__________________________________
(Executive Name) Chairman and Chief Executive Officer
or Vice Chairman of the Board
13
Schedule to Form of Change in Control Agreement
Effective
Executive Date
Bill D. Helton August 1, 1997
Wayne H. Brunetti August 1, 1997
Marilyn E. Taylor August 1, 1997
Richard C. Kelly August 1, 1997
Doyle R. Bunch II August 1, 1997
Ross C. King August 1, 1997
David M. Wilks August 1, 1997
Henry Hamilton August 1, 1997
Gary L. Gibson August 1, 1997
Teresa S. Madden August 1, 1997
James D. Steinhilper August 1, 1997*
John McAfee August 1, 1997
Paul J. Bonavia December 1, 1997
Brian P. Jackson December 1, 1997
James T. Petillo September 22, 1998
Patricia Vincent January 1, 1999
* Effective January 1, 1999 no longer employee of NCE