PACIFICORP STOCK INCENTIVE PLAN
AND
PACIFICORP LONG TERM INCENTIVE PLAN
NOTICE OF AMENDMENT TO RESTRICTED STOCK AGREEMENT
(PERFORMANCE BASED)
On November 18, 1998, the Board of Directors of PacifiCorp (the "Company")
approved amendments to all outstanding restricted stock awards granted under the
Company's Stock Incentive Plan and the Company's Long Term Incentive Plan. This
Notice of Amendment is intended to apply to each Restricted Stock Agreement
covering a restricted stock award granted under the Company's Long Term
Incentive Plan and each Restricted Stock Agreement covering a restricted stock
award identified as a "Performance Based" award under the Company's Stock
Incentive Plan. The Company agrees that each Restricted Stock Agreement
covering such a restricted stock award outstanding as of November 18, 1998 is
hereby amended as follows:
1. SECTION 3.2(b) OF THE RESTRICTED STOCK AGREEMENT IS AMENDED TO READ IN ITS
ENTIRETY AS FOLLOWS:
"(b) ACCELERATED VESTING. Any unvested Grant Shares shall
become fully Vested upon the occurrence of any of the following:
(i) Upon a Change in Control, unless such
acceleration of vesting would preclude the availability of "pooling of
interests" accounting. For purposes of this Agreement, "Change in Control"
shall mean the occurrence of any of the following events:
(A) The consummation of:
(1) any consolidation, merger or
plan of share exchange involving the Company (a "Merger") as a result
of which the holders of outstanding securities of the Company
ordinarily having the right to vote for the election of directors
("Voting Securities") immediately prior to the Merger do not continue
to hold at least 50% of the combined voting power of the outstanding
Voting Securities of the surviving or continuing corporation
immediately after the Merger, disregarding any Voting Securities
issued or retained by such holders in respect of securities of any
other party to the Merger; or
(2) any sale, lease, exchange
or other transfer (in one transaction or a series of related
transactions) of all, or substantially all, the assets of the
Company.
(B) At any time during a period of
two consecutive years, individuals who at the beginning of such
period constituted the
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Board ("Incumbent Directors") shall cease for any reason to constitute
at least a majority thereof; provided, however, that the term
"Incumbent Director" shall also include each new director elected
during such two-year period whose nomination or election was approved
by two-thirds of the Incumbent Directors then in office; or
(C) Any "person" or "group"
(within the meaning of Sections 13(d) and 14(d)(2) of the
Securities Exchange Act of 1934, as amended (the "Act")) shall,
as a result of a tender or exchange offer, open market purchases
or privately negotiated purchases from anyone other than the
Company, have become the beneficial owner (within the meaning of
Rule 13d-3 under the Act), directly or indirectly, of Voting
Securities representing twenty percent (20%) or more of the
combined voting power of the then outstanding Voting Securities.
(ii) If an "Employer Disposition" occurs and
either (a) the Employee is not employed by the Company or a parent or subsidiary
of the Company within 120 days after such Employer Disposition or (b) the
Employee is employed by the Company or a parent or subsidiary of the Company
within 120 days after such Employer Disposition but leaves such employment on or
before the 120th day. For purposes of this Agreement, an "Employer Disposition"
occurs when all the equity ownership of the subsidiary of the Company employing
the Employee is disposed of and as a result, no part of such equity ownership is
held by the Company or one of its subsidiaries;
(iii) January 1 following the death of the
Employee; or
(iv) Receipt by the Employee of formal written
notice of termination following the permanent and total disability of the
Employee, which shall mean any medically determinable physical or mental
impairment that renders the Employee unable to engage in any substantial gainful
activity and can be expected to result in death or which has lasted or can be
expected to last for a continuous period of not less than 12 months; or
(v) January 1 following the Retirement of the
Employee after age 55 and completion of at least 5 "years of service" within the
meaning of the tax qualified defined benefit plan maintained by the Employee's
employer or, if no such defined benefit plan exists, the Company's defined
benefit plan."
2. ALL OTHER PROVISIONS OF THE RESTRICTED STOCK AGREEMENT SHALL REMAIN IN FULL
FORCE AND EFFECT WITHOUT CHANGE BY THIS NOTICE OF AMENDMENT.
PACIFICORP
By
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CONFORMED COPY
PACIFICORP LONG TERM INCENTIVE PLAN
1993 RESTATEMENT
(AS AMENDED THROUGH AMENDMENT NO. 2)
STOEL RIVES LLP
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A T T O R N E Y S
STANDARD INSURANCE CENTER
900 SW FIFTH AVENUE, SUITE 2300
PORTLAND, OREGON 97204-1268
TELEPHONE (503) 224-3380
FAX (503) 220-2480
TDD (503)
PACIFICORP LONG TERM INCENTIVE PLAN
1993 RESTATEMENT
(AS AMENDED THROUGH AMENDMENT NO. 2)
PacifiCorp, an Oregon corporation (the "Company"), amends and restates
its Long Term Incentive Plan, as adopted effective January 1, 1985 and amended
by Amendment No. 1 effective October 25, 1985, to provide in its entirety as set
forth herein. This Long Term Incentive Plan, as amended and restated (the
"Plan"), shall govern incentive awards made on or after the date the Plan is
approved by the Company's board of directors (the "Board of Directors").
Approval of the Plan by the Board of Directors shall not affect incentive awards
to be made with respect to performance cycles that began under the Company's
existing Long Term Incentive Plan prior to such approval, unless the Company and
the recipients of such awards agree otherwise.
1. PURPOSE AND ADOPTION BY SUBSIDIARIES.
1.1 PURPOSE. The purpose of the Plan, as restated herein, is to
promote the long-term success of the Company and its Subsidiaries by
providing stock-based incentives for selected executive employees of the
Company and its Subsidiaries to exert their best efforts on behalf of the
Company and its shareholders. Awards under the Plan shall take the form of
grants of shares of the Company's Common Stock ("Common Stock"). Such
shares shall be held by Plan participants ("Participants") subject to
satisfaction of such vesting and stock ownership restrictions as may be
specified at the time of grant.
1.2 SUBSIDIARIES. For purposes of this Plan, the term "Subsidiary"
shall mean any corporation that is a member, together with the Company, of
a controlled group of corporations within the meaning of Internal Revenue
Code Section 1563 and that adopts this Plan with the Company's approval.
Awards under the Plan for any Participant employed by a Subsidiary shall be
the financial responsibility of such Subsidiary. The Subsidiary's
agreement to be bound by this obligation and other terms of the Plan shall
be evidenced by a statement of adoption of the Plan executed by the
Subsidiary and by the Company. All grants under the Plan to a
participant employed by a Subsidiary shall be treated for tax purposes as
if made by the Subsidiary and shall be reported accordingly.
2. SHARES SUBJECT TO THE PLAN. Subject to adjustment as provided in
Section 7, the total number of shares of Common Stock that may be awarded under
the Plan shall not exceed 900,000 shares. Shares awarded under the Plan shall
be purchased on the open market for delivery to Participants.
3. EFFECTIVE DATE AND DURATION OF PLAN.
3.1 EFFECTIVE DATE. The Plan shall become effective on the date
adopted by the Board of Directors; provided, however, that no award under
the Plan shall be
deemed effective until the Plan is approved by the affirmative vote of
the holders of a majority of the securities of the Company represented and
entitled to vote at a duly held meeting of the Company's shareholders at
which a quorum is present. Any award made prior to shareholder approval
of the Plan shall be conditioned on and made subject to such approval.
Subject to this limitation, shares may be awarded under the Plan at any
time after the effective date and before termination of the Plan.
3.2 DURATION AND EARLY TERMINATION. Unless earlier terminated, the
Plan shall continue in effect until all shares available for awards under
the Plan have been awarded and all restrictions on such shares, if any,
have lapsed. The Board of Directors may suspend or terminate the Plan at
any time except with respect to outstanding shares held subject to
restrictions. Termination shall not affect the forfeitability of shares
awarded under the Plan.
4. ADMINISTRATION.
4.1 BOARD OF DIRECTORS. The Plan shall be administered by the Board
of Directors of the Company, which shall determine and designate from time
to time the individuals to whom awards shall be made, the amount of the
awards and the other terms and conditions of the awards. Subject to the
provisions of the Plan, the Board of Directors may from time to time adopt
and amend rules and regulations relating to administration of the Plan,
waive or modify any restriction applicable to shares (except those
restrictions imposed by law) and make all other determinations that are, in
the judgment of the Board of Directors, necessary or desirable for the
administration of the Plan. The interpretation and construction of the
provisions of the Plan and related agreements by the Board of Directors
shall be final and conclusive. The Board of Directors may correct any
defect or supply any omission or reconcile any inconsistency in the Plan or
in any related agreement in the manner and to the extent it shall deem
expedient to carry the Plan into effect, and it shall be the sole and final
judge of such expediency.
4.2 COMMITTEE. The Board of Directors may delegate to a committee of
directors (the "Committee") any or all authority for administration of the
Plan. If authority is delegated to a Committee, all references to the
Board of Directors in the Plan shall mean and relate to the Committee
except (i) as otherwise provided by the Board of Directors, and (ii) that
only the Board of Directors may terminate or amend the Plan as provided in
Sections 3.2 and 11.
4.3 OFFICER. The Board of Directors or the Committee, as applicable,
may delegate to an executive officer of the Company authority to administer
those aspects of the Plan that do not involve selection of Participants or
decisions concerning the timing, pricing, or amounts of awards. No officer
to whom administrative authority has been granted under this Section 4.3
may waive or modify any restriction applicable to shares granted to such
officer under the Plan.
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5. ELIGIBILITY. All executive employees of the Company and its
Subsidiaries are eligible for selection as Participants. The Board of Directors
may, from time to time, select as Participants those executive employees who the
Board of Directors believes have made or will make important contributions to
the long-term performance of the Company and its Subsidiaries.
6. AWARDS.
6.1 GRANT CRITERIA. In determining the individuals to whom awards
under the Plan shall be made and the amounts of the awards, the Board of
Directors shall consider criteria such as the following:
(a) Total shareholder return relative to peer companies;
(b) Earnings per share growth over time relative to peer
companies;
(c) Achievement of long term goals, strategies and plans; and
(d) Maintenance of competitive position.
6.2 RESTRICTIONS. Shares awarded shall be subject to such terms,
conditions, and restrictions as may be determined by the Board of Directors
to be consistent with the purpose of the Plan and the best interests of the
Company. The restrictions may include, without limitation, stock transfer
restrictions and forfeiture provisions designed to facilitate the
achievement by Participants of specified stock ownership goals.
6.3 AGREEMENTS. The Board of Directors may require the recipient to
sign an agreement as a condition of the award.
7. CHANGES IN CAPITAL STRUCTURE. If the outstanding Common Stock of the
Company is hereafter increased or decreased or changed into or exchanged for a
different number or kind of shares or other securities of the Company or of
another corporation by reason of any reorganization, merger, consolidation, plan
of exchange, recapitalization, reclassification, stock split-up, combination of
shares or dividend payable in shares, appropriate adjustment shall be made by
the Board of Directors in the number and kind of shares available for awards
under the Plan. Notwithstanding the foregoing, the Board of Directors shall
have no obligation to effect any adjustment that would or might result in the
issuance of fractional shares, and any fractional shares resulting from any
adjustment may be disregarded or provided for in any manner determined by the
Board of Directors. Any such adjustments made by the Board of Directors shall
be conclusive.
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8. ACCELERATION UPON TERMINATION AFTER CHANGE IN CONTROL.
Notwithstanding any other provisions of the Plan or related agreements, all
restrictions affecting shares of Common Stock awarded to a Participant under the
Plan shall immediately lapse upon termination of the Participant's employment
within two years after the date on which any of the events described in 8.1, 8.2
or 8.3 has taken place or upon an Employer Disposition described in 8.4, if (i)
the Participant does not become employed by the Company or a Subsidiary within
120 days after such Employer Disposition occurs, or (ii) the Participant becomes
employed by the Company or an affiliate within 120 days after the Employer
Disposition occurs, but leaves such employment on or before the 120th day.
8.1 TENDER OR EXCHANGE OFFER. A tender or exchange offer, other than
one made by the Company, is made for Common Stock (or securities
convertible into Common Stock) and such offer results in a portion of those
securities being purchased and the offeror after the consummation of the
offer is the beneficial owner (as determined pursuant to Section 13(d) of
the Securities Exchange Act of 1934, as amended (the "Exchange Act")),
directly or indirectly, of at least 20 percent of the outstanding Common
Stock ; or
8.2 20 PERCENT OWNER. The Company receives a report on Schedule 13D
under the Exchange Act reporting the beneficial ownership by any person of
20 percent or more of the Company's outstanding Common Stock; or
8.3 BOARD OF DIRECTORS. During any period of 12 months or less,
individuals who at the beginning of such period constituted a majority of
the Board of Directors cease for any reason to constitute a majority
thereof unless the nomination or election of such new directors was
approved by a vote of at least two-thirds of the directors then still in
office who were directors at the beginning of such period.
8.4 EMPLOYER DISPOSITION. All the equity ownership of the Subsidiary
employing the Participant is disposed of and as a result no part of such
equity ownership is held by the Company or one of its Subsidiaries.
9. STOCK CERTIFICATE LEGENDS. The certificates representing shares of
Common Stock awarded under the Plan shall bear any legends required by the Board
of Directors.
10. WITHHOLDING TAX. The Company may require any recipient of an award
under the Plan to pay to the Company in cash upon demand amounts necessary to
satisfy any applicable federal, state or local tax withholding requirements. If
the recipient fails to pay the amount demanded, the Company may withhold that
amount from other amounts payable by the Company to the recipient, including
salary or fees for services, subject to applicable law.
11. AMENDMENT OF PLAN. The Board of Directors may at any time, and from
time to time, modify or amend the Plan in such respects as it shall deem
advisable because of changes in the law while the Plan is in effect or for any
other reason. Except as provided in Sections 4.1 and 8, however, no change in
an award already granted shall be made without the written consent of the
recipient of such award.
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12. APPROVALS. The obligations of the Company under the Plan are subject
to the approval of state and federal authorities or agencies with jurisdiction
in the matter. The Company will use its best efforts to take steps required by
state or federal law or applicable regulations, including rules and regulations
of the Securities and Exchange Commission and any stock exchange on which the
Company's shares may then be listed, in connection with the grants under the
Plan. The foregoing notwithstanding, the Company shall not be obligated to
issue or deliver Common Stock under the Plan if such issuance or delivery would
violate applicable state or federal securities laws.
13. EMPLOYMENT AND SERVICE RIGHTS. Nothing in the Plan or any award
pursuant to the Plan shall (i) confer upon any employee any right to be
continued in the employment of the Company or any Subsidiary or interfere in any
way with the right of the Company or any Subsidiary by whom such employee is
employed to terminate such employee's employment at any time, for any reason,
with or without cause, or to decrease such employee's compensation or benefits,
or (ii) confer upon any person engaged by the Company or any Subsidiary any
right to be retained or employed by the Company or any Subsidiary or to the
continuation, extension, renewal, or modification of any compensation, contract,
or arrangement with or by the Company or any Subsidiary.
14. RIGHTS AS A SHAREHOLDER. The recipient of an award under the Plan
shall have the right to vote all shares of Common Stock awarded to such
recipient and shall have the right to all ordinary dividends payable in respect
of such shares, regardless of whether such shares have vested or are subject to
restrictions.
1993 Restatement Adopted by Board of Directors: November 17, 1993
1993 Restatement Approved by Shareholders: May 11, 1994
Amendment No. 1 Adopted by Board of Directors: May 21, 1997
Amendment No. 2 Adopted by Board of Directors: February 11, 1998
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