Exhibit 10.24
AMENDED AND RESTATED CHANGE IN CONTROL AGREEMENT
BETWEEN IDACORP, INC.
AND
______________________
THIS AMENDED AND RESTATED CHANGE IN CONTROL AGREEMENT (the
"Agreement"), is by and between IDACORP, Inc., an Idaho corporation
(the "Corporation") and __________________ (the "Executive") and is
effective on the date established pursuant to Section 15 of this
Agreement (the "Effective Date").
W I T N E S S E T H:
WHEREAS, the Executive is a valuable employee of the Corporation or
a Subsidiary of the Corporation, an integral part of its
management, and a key participant in the decision-making process
relative to short-term and long-term planning and policy for the
Corporation; and
WHEREAS, the Corporation wishes to encourage the Executive to
continue his career and services with the Corporation or a
Subsidiary, as the case may be, following a Change in Control;
and
WHEREAS, the Executive and the Corporation are parties to a Change
in Control Agreement dated
[
] (the "Prior Agreement"), and the Executive and the Corporation
desire to change certain terms of the Prior Agreement to address
changes in tax laws and to revise and clarify certain other terms
of the Prior Agreement; and
WHEREAS, the Executive and the Corporation have agreed that this
Agreement shall supersede and replace the Prior Agreement; and
WHEREAS, the Board has determined that it would be in the best
interests of the Corporation and its shareholders to assure
continuity in the management of the Corporation's, including
Subsidiaries', administration and operations in the event of a
Change in Control by entering into this Agreement with the
Executive;
NOW THEREFORE, it is hereby agreed by and between the parties
hereto as follows:
1. Definitions.
a. "Board" shall mean
the Board of Directors of the Corporation.
b. "Cause" shall mean
the Executive's fraud or dishonesty which has resulted or is likely
to result in material economic damage to the Corporation or a
Subsidiary of the Corporation, as determined in good faith by a
vote of at least two-thirds of the non-employee directors of the
Corporation at a meeting of the Board at which the Executive is
provided an opportunity to be heard.
c. "Change in Control"
shall mean:
(i) any person (as
such term is defined in Section 3(a)(9) of the Securities Exchange
Act of 1934 (the "1934 Act") and as used in Section 13(d) of the
1934 Act), excluding (A) the Corporation or any Subsidiary, (B) a
corporation or other entity owned, directly or indirectly, by the
stockholders of the Corporation immediately prior to the
transaction in substantially the same proportions as their
ownership of stock of the Corporation, (C) an employee benefit plan
(or related trust) sponsored or maintained by the Corporation or
any Subsidiary or (D) an underwriter temporarily holding securities
pursuant to an offering of such securities ("Person")) is the
beneficial owner (as defined in Rule 13d-3 under the 1934 Act),
directly or indirectly, of 20% or more of the combined voting power
of the then outstanding voting securities eligible to vote
generally in the election of directors of the Corporation;
provided, however, that no Change in Control will be deemed to have
occurred as a result of a change in ownership percentage resulting
solely from an acquisition of securities by the Corporation;
(ii) any Person has commenced
a tender or exchange offer to acquire any stock of the Corporation
(or securities convertible into stock) for cash, securities or any
other consideration provided that, after the closing of the offer
with full shareholder subscription, such Person would be the
beneficial owner (as defined in Rule 13d-3 under the 1934 Act),
directly or indirectly, of 20% or more of the combined voting power
of the then outstanding voting securities eligible to vote
generally in the election of directors of the Corporation
(calculated as provided in Paragraph (d) of Rule 13d-3 under the
1934 Act in the case of rights to acquire stock);
(iii) all required shareholder
approvals have been obtained for a merger, consolidation,
reorganization or share exchange, or sale of all or substantially
all of the assets, of the Corporation or Idaho Power Company (a
"Qualifying Transaction"), unless, immediately following such
Qualifying Transaction, all of the following have occurred: (A) all
or substantially all of the beneficial owners of the Corporation
immediately prior to such Qualifying Transaction will beneficially
own in substantially the same proportions, directly or indirectly,
more than 50% of the combined voting power of the then outstanding
voting securities entitled to vote generally in the election of
directors of the corporation or other entity resulting from such
Qualifying Transaction (including, without limitation, a
corporation or other entity which, as a result of such transaction,
owns the Corporation or all or substantially all of the
Corporation's assets either directly or through one or more
subsidiaries) (as the case may be, the "Successor Entity"), (B) no
Person will be the beneficial owner (as defined in Rule 13d-3 under
the 1934 Act), directly or indirectly, of 20% or more of the
combined voting power of the then outstanding voting securities
eligible to vote generally in the election of directors of the
Successor Entity and (C) at least a majority of the members of the
board of directors of the Successor Entity will be Incumbent
Directors;
(iv) shareholder approval of a
complete liquidation or dissolution of the Corporation or Idaho
Power Company; or
(v) within a 24-month
period, individuals who were directors of the Board immediately
before such period ("Incumbent Directors") cease to constitute at
least a majority of the directors of the Board; provided, however,
that any director who was not a director of the Board at the
beginning of such period shall be deemed to be an Incumbent
Director if the election or nomination for election of such
director was approved by the vote of at least two-thirds of the
directors of the Board then still in office (A) who were in office
at the beginning of the 24-month period or (B) whose election or
nomination for election was so approved, in each case, unless such
individual was elected or nominated as a result of an actual or
threatened election contest or as a result of an actual or
threatened solicitation of proxies or consents by or on behalf of
any Person other than the Board; or
(vi) consummation of any transaction
described in Section 1(c)(iii) or 1(c)(iv) if such transaction was
not approved by shareholders.
For
avoidance of doubt, transactions for the purpose of dividing Idaho
Power Company's assets into separate distribution, transmission or
generation entities or such other entities as the Corporation or
Idaho Power Company may determine shall not constitute a Change in
Control unless so determined by the Board.
Upon the Board's determination that (x) a tender offer that
constituted a Change in Control under Section 1(c)(ii) will not
result in a Person becoming the beneficial owner (as defined in
Rule 13d-3 under the 1934 Act), directly or indirectly, of 20% or
more of the combined voting power of the then outstanding voting
securities eligible to vote generally in the election of directors
of the Corporation or (y) the Qualifying Transaction described in
Section 1(c)(iii) will not be closed or (z) a complete liquidation
or dissolution of the Corporation or Idaho Power Company that was
approved by shareholders, as described in Section 1(c)(iv), will
not occur, a Change in Control shall be deemed not to have occurred
from such date of determination forward, and this Agreement shall
continue in effect as if no Change in Control had occurred except
to the extent a Separation from Service requiring payments under
this Agreement occurs prior to such Board determination.
d. "Code" shall mean the
Internal Revenue Code of 1986, as amended.
e. "Compensation"
shall mean the sum of (i) the Executive's annual base salary at the
time of Separation from Service (or, if greater, at the time of a
termination of employment that does not constitute a Separation
from Service) and (ii) the Executive's target annual incentive
award in the year of the Separation from Service (or, if greater,
at the time of a termination of employment that does not constitute
a Separation from Service) (or, if as of the date of the Separation
from Service (or termination of employment, as the case may be) no
target annual incentive award has yet been determined for the year
of the Separation from Service, the target annual incentive award
for the prior year).
f. "Constructive
Discharge" shall mean any of the following:
(i) any material failure
by the Corporation to comply with any of the provisions of this
Agreement;
(ii) the Corporation or a
Subsidiary of the Corporation requiring the Executive to be based
at any office or location more than 50 miles from the location at
which the Executive was based on the day prior to the Change in
Control;
(iii) a reduction which is more than
de minimis in (A) the Executive's annual rate of base salary or
maximum annual incentive award opportunity, (B) the long-term
incentive compensation the Executive has the opportunity to earn,
determined in the aggregate if multiple long-term incentive
opportunities exist or (C) the combined annual benefit accrual rate
under the Corporation's qualified defined benefit pension plan
and/or the Idaho Power Company Security Plan for Senior Management
Employees, as in effect immediately prior to the Change in Control
(except if such reduction is a part of a reduction for all
executive officers);
(iv) the Corporation's failure to
require a successor entity to assume and agree to perform the
Corporation's obligations pursuant to Section 9; or
(v) a reduction which is more
than de minimis in the long term disability and life insurance
coverage provided to the Executive under the Corporation's life
insurance and long term disability plans as in effect immediately
prior to the Change in Control.
No
such event described hereunder shall constitute Constructive
Discharge unless the Executive has given written notice to the
Corporation specifying the event constituting such Constructive
Discharge within 90 days of the initial existence of such event
(but in no event later than the Ending Date) and the Corporation
has not remedied such within 30 days of receipt of such notice. The
Corporation and Executive, upon mutual written agreement, may waive
any of the foregoing provisions which would otherwise constitute a
Constructive Discharge.
g. "Coverage Period"
shall begin on the Starting Date and end on the Ending Date.
h. "Disability" shall
mean an injury or illness which permanently prevents the Executive
from performing services to the Corporation and which qualifies the
Executive for payments under the Corporation's long term disability
plan, which for purposes of this Agreement shall be the Idaho Power
Company Long Term Disability Plan.
i. "Ending Date"
shall be the date which is 36 full calendar months following the
date on which a Change in Control occurs or if the Change in
Control is shareholder approval pursuant to Section 1(c)(iii) or
1(c)(iv), the date which is 36 months following the consummation of
the transaction subject to such shareholder approval.
j. "Separation
from Service" shall mean "separation from service," as that term is
used in Code Section 409A(a)(2)(A)(i).
k. "Starting Date"
shall be the date on which a Change in Control occurs.
l. "Subsidiary"
means any corporation of which more than 50% of the outstanding
stock having ordinary voting power to elect a majority of the board
of directors of such corporation is now or hereafter owned,
directly or indirectly, by the Corporation.
2. Term.
This Agreement shall be effective as of the Starting Date and shall
continue thereafter until the 36 month anniversary of the later of
(i) such date or (ii) if the Change in Control causing the
Agreement to be effective is shareholder approval pursuant to
Section 1(c)(iii) or 1(c)(iv), the date of the consummation of the
transaction subject to such shareholder approval; provided,
however, the Corporation's obligations, if any, to provide payments
and/or benefits pursuant to Section 3 of this Agreement and the
obligations of the Corporation and the Executive under Section 5 of
this Agreement shall survive the termination of this Agreement.
3. Severance
Benefits.
a. If the Executive
experiences a Separation from Service effected by the Corporation
(and/or, if the Executive is employed by one or more Subsidiaries,
effected by the Corporation and/or such Subsidiary or Subsidiaries)
for any reason other than Cause (and not due to death or
Disability) (for avoidance of doubt, transfer of employment between
or among the Corporation and any of its Subsidiaries shall not
constitute a Separation from Service effected by the Corporation or
a Subsidiary for purposes of this Agreement), or effected by the
Executive in the event of a Constructive Discharge, in either case
at any time during the Coverage Period, then,
(i) the Corporation
shall pay or cause to be paid to the Executive (or if the Executive
dies after Separation from Service but before receiving all
payments to which he has become entitled hereunder, to the estate
of the Executive) the following amounts:
(A) accrued but unpaid salary and
accrued but unused vacation and sick time in accordance with the
Corporation's or a Subsidiary's, as the case may be, Flexible Time
Off or similar program, as may be amended from time to time, with
such payment to be made within five business days after such
Separation from Service; and
(B) subject to Section 17, a lump
sum cash amount equal to two and one-half times the Executive's
Compensation (the "Severance Payment"), with such payment to be
made on the first business day that is 60 days after such
Separation from Service, subject to the provisions of Section 19
hereof; and
(ii) subject to Section 17,
the Executive shall be entitled to the following additional
severance benefits:
(A) notwithstanding anything in any
other award notice or agreement providing otherwise, as applicable,
(1) all of the Executive's outstanding stock options and stock
appreciation rights shall become vested and exercisable as of the
date Severance Payments are paid; (2) all of the Executive's
outstanding shares of restricted stock and restricted stock units
shall become vested in full (at target levels for any
performance-based restricted stock or restricted stock units) as of
the date Severance Payments are paid and shall be paid on the date
the Severance Payments are paid; and (3) the target payout
opportunity under all of the Executive's outstanding performance
units or performance shares (or other similar awards with
performance-based vesting) shall become vested at target levels as
of the date Severance Payments are paid and shall be paid on the
date the Severance Payments are paid;
(B) outplacement services commencing
within 12 months of the date of the Separation from Service and
extending for a period of not more than 12 months, the scope and
provider of which shall be selected by the Executive in his sole
discretion (but at a total cost to the Corporation of not more than
$12,000); and
(C) continued coverage for Executive
and, as applicable, the Executive's covered dependents under the
Corporation's group health plans and other welfare benefit plans
(within the meaning of Section 3(1) of the Employee Retirement
Income Security Act of 1974, as amended) to the extent the
Executive elects to receive such coverage and pays a monthly
premium equal to the COBRA premium for such group health coverage
and the full monthly cost for such other welfare benefits (the
"Elected Continuation Coverage"). Any such Elected
Continuation Coverage shall be provided, to the extent the Company
is able to provide it or to arrange for the provision of such
benefits from another provider, on the same basis (excluding
premiums) as is provided to the Corporation's actively employed
executives and their dependents, as applicable, until the earlier
of (i) twenty-four (24) months after the Executive's Separation
from Service or (ii) the date the Executive is first eligible for
comparable coverage with a subsequent employer. As a separate
payment under this Agreement, for each month such Elected
Continuation Coverage continues under this Section 3(a)(ii)(C), the
Corporation shall pay to the Executive a monthly reimbursement
payment so that, after withholding of all applicable taxes on such
reimbursement payment, the Executive retains an amount equal to the
excess of the COBRA premium and the full monthly cost for such
Elected Continuation Coverage over the active employee cost for
such coverage.
b. Notwithstanding
anything to the contrary contained in this Agreement, if the
Executive's Separation from Service is effected by the Executive
for any reason (unless, prior to such Separation from Service, the
Corporation has given notice to the Executive that it intends to
effect a Separation from Service for Cause) in the first full
calendar month following the one year anniversary of the Change in
Control (provided, that, (i) in the case of a Change in Control
under Section 1(c)(ii), the one year anniversary shall be the first
anniversary of the date the tender offer is completed, provided the
tender offer has resulted in a Person becoming the beneficial owner
(as defined in Rule 13d-3 under the 1934 Act), directly or
indirectly, of 20% or more of the combined voting power of the then
outstanding voting securities eligible to vote generally in the
election of directors of the Corporation and (ii) in the case of a
Change in Control under Section 1(c)(iii) or 1(c)(iv), the one year
anniversary shall be the first anniversary of the date of the
consummation of the transaction or event constituting the Change in
Control), the Corporation shall pay (or cause to be paid) to the
Executive (or the Executive's estate upon death) the amounts and
provide to the Executive the benefits provided under Section 3(
