<PAGE>
As filed with the Securities and Exchange Commission on December 13, 1999.
Registration No. 33-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
under
THE SECURITIES ACT OF 1933
SIERRA PACIFIC RESOURCES
------------------------
(Exact name of registrant as specified in its charter)
Nevada 88-019-8358
------ -----------
(State or other jurisdiction of incorporation (I.R.S. Employer
or organization) Identification No.)
P.O. Box 30150 (6100 Neil Road), Reno, Nevada 89520-3150
--------------------------------------------------------
(Address of Principal Executive Offices) (Zip Code)
Executive Long-Term Incentive Plan; Non-Employee Director Stock Plan;
Employee Stock Purchase Plan
---------------------------------------------------------------------
(Full Title of the Plans)
William E. Peterson, Esq.
Senior Vice President, General Counsel and Corporate Secretary
Sierra Pacific Resources
P.O. Box 30150 (6100 Neil Road)
Reno, Nevada 89520-3150
-----------------------
(Name and address of agent for service)
(775) 834-4011
--------------
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=================================================================================================
Proposed Proposed
Title of maximum maximum Amount
securities Amount offering aggregate of
to be to be price per offering registration
registered registered (1) share (2) price (2) fee
---------- -------------- ---------- --------- ------------
<S> <C> <C> <C> <C>
Common Stock, par 1,600,000 Shares $18.0625 $28,900,000 $7,629.60
value $1.00
per share (3)
=================================================================================================
</TABLE>
<PAGE>
(1) The purpose of this Registration Statement is to register an aggregate of
1,600,000 shares of Common Stock, par value $1.00 per share, of Sierra
Pacific Resources (the "Company") that have been reserved for issuance
under each of the plans set forth above, plus such additional number of
shares as may be required pursuant to the plans set forth above in the
event of a stock dividend, split-up of shares, recapitalization or other
similar change in the Common Stock.
(2) Estimated solely for the purpose of calculating the registration fee, in
accordance with Rule 457(h)(1), on the basis of the average of the high
and low prices of the Common Stock, as reported on the New York Stock
Exchange on December 10, 1999.
(3) There are also registered hereunder the Rights issued and attached to the
Common Stock pursuant to the Rights Agreement between Sierra Pacific
Resources and Harris Trust and Savings Bank dated as of September 21,
1999.
2
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1 Plan Information*
Item 2 Registrant Information and Employee Plan Annual Information*
- --------
*Information required by Part I to be contained in the Section 10(a)
prospectus is omitted from this Registration Statement in accordance with Rule
428 under the Securities Act of 1933, as amended (hereinafter, the "Securities
Act"), and the "Note" to Part I of Form S-8.
3
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The SEC allows us to incorporate by reference the information we file
with them, which means:
- incorporated documents are considered part of the prospectus;
- we can disclose important information to you by referring you
to those documents; and
- information that we file with the SEC will automatically
update and supersede this incorporated information.
We incorporate by reference the documents listed below which were filed
with the SEC under the Securities Exchange Act of 1934:
a. Our annual report on Form 10-K for the fiscal year ending
December 31, 1998;
b. Our quarterly reports on Form 10-Q for the fiscal quarter ended
March 31, 1999, June 30, 1999 and September 30, 1999;
c. Our current report on Form 8-K dated August 9, 1999, as amended by
Form 8-K/A dated September 20, 1999; and
d. Our current report on Form 8-K dated December 7, 1999; and
e. The description of our capital stock contained in our
registration statement on Form 8-B, filed with the SEC on September 30, 1984,
and the description of the Rights agreement dated as of September 21, 1999,
as set forth on our Form 8-K dated December 7, 1999, including all amendments
and reports amending such description.
We also incorporate by reference each of the following documents
that we will file with the SEC after the date of this registration statement
until this offering is completed:
- reports filed under Sections 13(a) and (c) of the
Securities Exchange Act of 1934.
- definitive proxy or information statements filed under Section
14 of the Securities Exchange Act of 1934 in connection with
any subsequent stockholders' meeting; and
- any reports filed under Section 15(d) of the Securities
Exchange Act of 1934.
II-1
<PAGE>
You should rely only on information contained or incorporated by
reference in this registration statement. We have not authorized any other
person to provide you with different information. If anyone provides you with
different or inconsistent information, you should not rely on it. We are not
making an offer to sell these securities in any jurisdiction where the offer or
sale is not permitted.
You may request a copy of any filings referred to above (excluding
exhibits), at no cost, by contacting us at the following address: Director of
Finance/Assistant Treasurer, Sierra Pacific Resources, P.O. Box 30150 (6100 Neil
Road), Reno, Nevada 89520-3150, Telephone: (775) 834-4358.
Item 4. DESCRIPTION OF SECURITIES
Not applicable.
Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
Item 6. INDEMNIFICATION OF OFFICERS AND DIRECTORS
The Nevada Revised Statutes provide that under certain circumstances a
corporation may indemnify any person for amounts incurred in connection with a
pending or threatened action, suit or proceeding in which he is, or is
threatened to be made, a party by reason of his being a director, officer,
employee or agent of the corporation.
The Articles of Incorporation of Sierra Pacific Resources provide in
substance that we will indemnify each of our directors and officers and former
directors and officers against expenses necessarily incurred in connection with
the defense of any action, suit or proceeding in which he or she is made a party
by reason of being or having been a director or officer of Sierra Pacific
Resources, except in relation to matters as to which he or she shall be adjudged
liable for negligence or misconduct.
Sierra Pacific Resources has purchased insurance coverage under a
policy insuring our directors and officers against certain liabilities which
they may incur in their capacity as such.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
Item 8. EXHIBITS
The following is an index of all exhibits filed as part of this
Registration Statement.
II-2
<PAGE>
5.1 Opinion of Choate, Hall & Stewart as to the legality of the
shares being registered.
5.2 Opinion of Woodburn and Wedge as to the legality of the shares
being registered.
15.1 Letter of Deloitte & Touche LLP regarding unaudited interim
financial information
23.1 Consent of Deloitte & Touche LLP.
23.2 Consent of Choate, Hall & Stewart (included in Exhibit 5.1).
23.3 Consent of Woodburn and Wedge (included in Exhibit 5.2).
24.1 Power of Attorney (included in page II-5).
99.1 Sierra Pacific Resources' Executive Long-Term Incentive Plan.
99.2 Sierra Pacific Resources' Non-Employee Director Stock Plan.
99.3 Sierra Pacific Resources' Employee Stock Purchase Plan.
Item 9. UNDERTAKINGS
(a) Sierra Pacific Resources hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement to include any
material information with respect to the plan of distribution not previously
disclosed in the registration statement or any material change to such
information in the registration statement;
(2) that, for the purpose of determining any liability under the
Securities Act of 1933, as amended (the "Securities Act"), each such
post-effective amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof; and
(3) to remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
(b) Sierra Pacific Resources hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of our annual
report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange
Act of 1934 that is incorporated by reference in the registration statement
shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
II-3
<PAGE>
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of Sierra Pacific Resources pursuant to the foregoing provisions, or otherwise,
Sierra Pacific Resources have been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public policy as
expressed in the Securities Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by us of expenses incurred or paid by a director, officer or controlling
person of Sierra Pacific Resources in the successful defense of any action, suit
or proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, we will, unless in the opinion
of counsel the matter has been settled by controlling precedent, submit to a
court of appropriate jurisdiction the question whether such indemnification by
it is against public policy as expressed in the Securities Act and will be
governed by the final adjudication of such issue.
II-4
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT NUMBER PAGE
<S> <C> <C>
5.1 Opinion of Choate, Hall & Stewart as to the legality of the
shares being registered.
5.2 Opinion of Woodburn and Wedge as to the legality of the shares
being registered.
15.1 Letter of Deloitte & Touche LLP regarding unaudited interim
financial information
23.1 Consent of Deloitte & Touche LLP.
23.2 Consent of Choate, Hall & Stewart (included in Exhibit 5.1).
23.3 Consent of Woodburn and Wedge (included in Exhibit 5.2).
24.1 Power of Attorney (included in page II-5).
99.1 Sierra Pacific Resources' Executive Long-Term Incentive Plan.
99.2 Sierra Pacific Resources' Non-Employee Director Stock Plan.
99.3 Sierra Pacific Resources' Employee Stock Purchase Plan.
</TABLE>
II-5
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Reno, State of Nevada, on the 7th day of
December, 1999.
SIERRA PACIFIC RESOURCES
By /s/ Malyn K. Malquist
--------------------------------
Malyn K. Malquist, President and
Chief Operating Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints Malyn K. Malquist, William E.
Peterson, Richard K. Atkinson and William C. Rogers and each of them, as his or
her true and lawful attorneys-in-fact and agents, with full power of
substitution, for him or her and in his or her name, place and stead, in any and
all capacities, to sign any and all amendments (including post-effective
amendments) to this Registration Statement, and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents full power and authority to do and perform each and every act and thing
requisite and necessary to be done in connection therewith, as fully to all
intents and purposes as he or she might or could do in person, hereby ratifying
and confirming all that said attorneys-in-fact and agents or any of them, or
their or his substitute or substitutes, shall do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated:
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
<S> <C> <C>
/s/ Michael R. Niggli Chairman, Chief Executive Officer December 7, 1999
- ----------------------------------- and Director
Michael R. Niggli
/s/ Malyn K. Malquist President, Chief Operating Officer December 7, 1999
- ----------------------------------- and Director
Malyn K. Malquist
/s/ Mark A. Ruelle Senior Vice President, December 7, 1999
- ----------------------------------- Chief Financial Officer
Mark A. Ruelle and Treasurer
<PAGE>
SIGNATURE TITLE DATE
/s/ Edward P. Bliss Director December 7, 1999
- -----------------------------------
Edward P. Bliss
/s/ Mary Kaye Cashman Director December 7, 1999
- -----------------------------------
Mary Kaye Cashman
/s/ Mary Lee Coleman Director December 7, 1999
- -----------------------------------
Mary Lee Coleman
/s/ Krestine M. Corbin Director December 7, 1999
- -----------------------------------
Krestine M. Corbin
/s/ T.J. Day Director December 7, 1999
- -----------------------------------
T.J. Day
/s/ James R. Donnelley Director December 7, 1999
- -----------------------------------
James R. Donnelley
/s/ Fred D. Gibson, Jr. Director December 7, 1999
- -----------------------------------
Fred D. Gibson, Jr.
/s/ John L. Goolsby Director December 7, 1999
- -----------------------------------
John L. Goolsby
<PAGE>
SIGNATURE TITLE DATE
/s/ Jerry E. Herbst Director December 7, 1999
- -----------------------------------
Jerry E. Herbst
/s/ James L. Murphy Director December 7, 1999
- -----------------------------------
James L. Murphy
/s/ John F. O'Reilly
- ----------------------------------- Director December 7, 1999
John F. O'Reilly
/s/ Dennis E. Wheeler
- ----------------------------------- Director December 7, 1999
Dennis E. Wheeler
</TABLE>
<PAGE>
EXHIBIT 5.1
CHOATE, HALL & STEWART
A PARTNERSHIP INCLUDING PROFESSIONAL CORPORATIONS
EXCHANGE PLACE
53 STATE STREET
BOSTON, MASSACHUSETTS 02109-2891
TELEPHONE (617)248-5000
FACSIMILE (617) 248-4000
TELEX 49615860
December 8, 1999
Sierra Pacific Resources
P.O. Box 30150
6100 Neil Road
Reno, Nevada 89520-3150
Ladies and Gentlemen:
This opinion is delivered to you in connection with the registration
statement on Form S-8 (the "REGISTRATION STATEMENT") to be filed on or about
December 7, 1999 by Sierra Pacific Resources (the "COMPANY") under the
Securities Act of 1933, as amended (the "SECURITIES ACT"), for registration
under the Securities Act of 1,600,000 shares of Common Stock, $1.00 par value
per share (the "COMMON STOCK"), of the Company to be issued by the Company from
time to time under its Executive Long-Term Incentive Plan, Non-Employee Director
Stock Plan, and Employee Stock Purchase Plan (collectively the "Plans").
Capitalized terms used and not otherwise defined shall have the meanings given
to them in the Registration Statement.
We are familiar with the Company's Restated Articles of Incorporation,
its By-Laws, the records of its corporate proceedings and the Plans. We have
also examined such other documents, records and certificates and made such
further investigation as we have deemed necessary for the purposes of this
opinion.
Based upon and subject to the foregoing, we are of the opinion that the
shares of Common Stock to be sold by the Company under the Plans, as in effect
on the date hereof, when issued against receipt of the agreed purchase price
therefor in accordance with the terms of the Plans will be legally issued, fully
paid and nonassessable.
Insofar as this opinion relates to matters of law and legal
conclusions governed by the laws of the State of Nevada, we base it on the
opinion of Messrs. Woodburn and Wedge, as evidenced by the opinion of such
firm to be filed with the Registration Statement and consent contained in
such opinion to the statements made in the Registration Statement regarding
such firm.
We understand that this opinion is to be used in connection with the
Registration Statement and consent to the filing of this opinion as an
exhibit to the Registration Statement.
Very truly yours,
CHOATE, HALL & STEWART
<PAGE>
EXHIBIT 5.2
Sierra Pacific Resources
December 7, 1999
Page 1
December 7, 1999
Sierra Pacific Resources
6100 Neil Road
P.O. Box 30150
Reno, Nevada 89520
Ladies and Gentlemen:
This opinion is delivered in connection with a Registration Statement on
Form S-3 (the "Registration Statement") of Sierra Pacific Resources, a Nevada
corporation ("the Company"), relating to the proposed issuance and sale from
time to time, pursuant to the Company's Employee Stock Purchase Plan,
Non-Employee Director Stock Plan and Executive Long-Term Incentive Plan (each
a "Plan" and collectively, the "Plans"), of up to 1,600,000 shares of the
Company's Common Stock, $1.00 par value (the "Plan Shares"). As special
Nevada counsel for the Company, we advise you as follows:
We are of the opinion that the Company is a corporation duly organized
and legally existing under the laws of the State of Nevada and is in good
standing under said laws, and that it is legally qualified to hold property
and do business under said laws.
The Board of Directors of the Company has authorized the issuance and
sale of the Plan Shares. When issued and sold against payment therefor in
accordance with the provisions of the applicable plan, the Plan Shares will
be duly and validly authorized and legally issued and will be fully paid and
non-assessable.
The foregoing opinion is limited to the matters expressly set forth
herein and no opinion may be implied or inferred beyond the matters expressly
stated. We disclaim any obligation to update this letter for events occurring
after the date of this letter, or as a result of knowledge acquired by us
after that date, including changes in any of the statutory or decisional law
after the date of this letter. We are members of the bar of the State of
Nevada. We express no opinion as to the effect and application of any United
States federal law, rule
<PAGE>
Sierra Pacific Resources
December 7, 1999
Page 2
or regulation or any securities or blue sky laws of any state, including the
State of Nevada. We are not opining on, and assume no responsibility as to,
the applicability to or the effect on any of the matters covered herein of
the laws of any other jurisdiction, other than the laws of Nevada as
presently in effect.
We hereby consent:
1. To being named in the Registration Statement and in any amendments
thereto as counsel for the Company;
2. To the statements with reference to our firm made in the
Registration Statement; and
3. To the filing of this opinion as an exhibit to the Registration
Statement.
Sincerely,
WOODBURN and WEDGE
By: /s/ Greg P. Barnard
-------------------
Greg P. Barnard
<PAGE>
Sierra Pacific Resources
6100 Neil Road
Reno, Nevada 89520
We have made a review, in accordance with standards established by the
American Institute of Certified Public Accountants, of the unaudited interim
financial information of Sierra Pacific Resources and subsidiaries (the
Company) for the periods ended March 31, 1999 and June 30, 1999 as indicated
in our reports dated April 31, 1999 and August 5, 1999, respectively; because
we did not perform an audit, we expressed no opinion on that information.
We are aware that our reports referred to above, which were included in the
Company's Quarterly Reports on Form 10-Q for the quarters ended March 31,
1999 and June 30, 1999 are incorporated by reference in this Registration
Statement of the Company on Form S-8.
We also are aware that the aforementioned reports, pursuant to Rule 436(c)
under the Securities Act of 1933, are not considered a part of the
Registration Statement prepared or certified by an accountant or a report
prepared or certified by an accountant within the meaning of Sections 7 and
11 of that Act.
December 13, 1999
<PAGE>
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement
of Sierra Pacific Resources on Form S-8 of our reports dated January 29,
1999 (February 12, 1999 as to Notes 1 and 5) and March 19, 1999, appearing in
the Annual Report on Form 10-K of Sierra Pacific Resources for the year ended
December 31, 1998.
December 13, 1999
<PAGE>
SIERRA PACIFIC RESOURCES
EXECUTIVE LONG-TERM INCENTIVE PLAN
ARTICLE 1. ESTABLISHMENT, PURPOSE, AND DURATION
1.1 ESTABLISHMENT OF THE PLAN. Sierra Pacific Resources, a Nevada
corporation (hereinafter referred to as the "Company"), hereby establishes an
incentive compensation plan to be known as the "Sierra Pacific Resources
Executive Long-Term Incentive Plan" (hereinafter referred to as the "Plan"), as
set forth in this document. The Plan permits the grant of Nonqualified Stock
Options (NQSO), Incentive Stock Options (ISO), Stock Appreciation Rights (SARs),
Restricted Stock, Performance Units, Performance Shares, and Bonus Stock.
Subject to ratification by an affirmative vote of a majority of the
issued and outstanding shares of the Company's common stock represented at the
annual meeting, the Plan shall become effective as of January 1, 1994 (the
"Effective Date") and shall remain in effect as provided in Section 1.3 herein.
1.2 PURPOSE OF THE PLAN. The purpose of the Plan is to promote the
success and enhance the value of the Company by linking the personal interests
of Participants to those of Company shareholders, stakeholders, customers, and
employees by providing Participants with an incentive for outstanding
performance.
The Plan is further intended to provide flexibility to the Company in
its ability to motivate, attract, and retain the services of Participants upon
whose judgment, interest, and special effort the successful conduct of its
operation is largely dependent.
The Plan is further intended to provide pay systems that support the
Company's business strategy, and which are competitive with similarly sized
utilities, and to emphasize pay-for-performance by tying reward opportunities to
carefully determined and articulated performance goals at corporate, business
unit, and individual levels.
1.3 DURATION OF THE PLAN. The Plan shall commence on the Effective
Date, as described in Section 1.1 herein, and shall remain in effect, subject to
the right of the Board of Directors to terminate the Plan at any time pursuant
to Article 15 herein or until all Shares subject to it shall have been purchased
or acquired according to the Plan's provisions. However, in no event may an
Award be granted under the Plan on or after December 31, 2003.
ARTICLE 2. DEFINITIONS
Whenever used in the Plan, the following terms shall have the meanings
set forth below and, when the meaning is intended, the initial letter of the
word is capitalized:
2.1 "AWARD" means, individually or collectively, a grant under this
Plan of NQSO's ISO's, SARs, Restricted Stock, Performance Units, Performance
Shares, or Bonus Stock.
<PAGE>
2.2 "AWARD AGREEMENT" means an agreement entered into by each
Participant and the Company, setting forth the terms and provisions applicable
to Awards granted to Participants under this Plan.
2.3 "BOARD" or "BOARD OF DIRECTORS" means the Board of Directors of the
Company.
2.4 "BONUS STOCK" means and Award granted to a Participant pursuant to
Article 10 herein.
2.5 "CAUSE" means: (i) willful misconduct on the part of a Participant
that is detrimental to the Company, or (ii) the conviction of a Participant for
the commission of a felony or crime involving moral turpitude. "Cause" under
either (i) or (ii) shall be determined in good faith by the Committee.
2.6 "CHANGE IN CONTROL" of the Company shall be deemed to have occurred
as of the first day that any one or more of the following conditions shall have
been satisfied:
(a) The dissolution or liquidation of the Company;
(b) A reorganization, merger, or consolidation of the Company with
one or more corporation as a result of which the Company is
not the surviving corporation,
(c) The sale, exchange, transfer, or other disposition of shares
of the stock of the Company (or shares of the stock of any
person that is a shareholder of the Company) in one or more
transactions, related or unrelated, to one or more Persons if,
as result of such transactions, any Person or any Person and
its affiliates own more than twenty percent (20%) of the
voting power of the outstanding stock of the Company; or
(d) The sale of all or substantially all the assets of the
Company.
2.7 "CODE" means the Internal Revenue Code of 1986, as amended from
time to time.
2.8 "COMMITTEE" means the committee, as specified in Article 3,
appointed by the Board to administer the Plan with respect to grants of Awards.
2.9 "COMPANY" means Sierra Pacific Resources, a Nevada corporation, or
any successor thereto as provided in Article 18 herein.
2.10 "DIRECTOR" means any individual who is a member of the Board of
Directors of the Company.
2.11 "DISABILITY" shall have the meaning ascribed to such term in the
Long-Term Disability Income Plan of the Company.
2
<PAGE>
2.12 "DIVIDEND EQUIVALENT" means a contingent right to be paid
dividends declared with respect to outstanding Option grants, pursuant to the
terms of Section 6.5 herein.
2.13 "ELIGIBLE EMPLOYEE" means those employees who are eligible to
participate in the Plan, as set forth in Section 5.1 herein.
2.14 "EMPLOYEE" means any full-time, nonunion employee of the Company
or of the Company's Subsidiaries. Directors who are not otherwise employed by
the Company shall not be considered Employees under this Plan.
2.15 "EXCHANGE ACT" means the Securities Exchange Act of 1934, as
marked from time to time, or any successor Act thereto.
2.16 "FAIR MARKET VALUE" shall mean the closing sale price on the
principal securities exchange on which the Shares may then be traded or, if
there is no such sale on the relevant date, then on the last previous day on
which a sale was reported.
2.17 "FREESTANDING SAR" means a SAR that is granted independently of
any Options.
2.18 "INCENTIVE STOCK OPTION" or "ISO" means an option to purchase
Shares, granted under Article 6 herein, which is designated as an Incentive
Stock Option and is intended to meet the requirements of Section 422 of the
Code.
2.19 "INSIDER" shall mean an Employee who is, on the relevant date, an
officer, director, or ten percent (10%) beneficial owner of the Company, as
defined under Section 16 of the Exchange Act.
2.20 "NAMED EXECUTIVE OFFICER" means an Participant who, as of the date
of vesting and/or payout of an Award is one of the group of "covered employees,"
as defined in the Regulations promulgated under Code Section 162(m), or any
successor statute.
2.21 "NONQUALIFIED STOCK OPTION" or "NQDO" means an option to purchase
Shares, granted under Article 6 herein, which is not intended to be an incentive
Stock Option.
2.22 "OPTION" means an Incentive Stock Option or a Nonqualified Stock
Option.
2.23 "OPTION PRICE" means the price at which a Share may be purchased
by a Participant pursuant to an Option, as determined by the Committee.
2.24 "PARTICIPANT" means an Employee of the Company who has outstanding
an Award granted under the Plan.
2.25 "PERFORMANCE UNIT" means an Award granted to Employee, as
described in Article 9 herein.
3
<PAGE>
2.26 "PERFORMANCE SHARE" means an Award granted to an Employee, as
described in Article 9 herein.
2.27 "PERIOD OF RESTRICTION" means the period during which the transfer
of Shares of Restricted Stock is limited in some way (based on the passage of
time, the achievement of performance goals, or upon the occurrence of other
events as determined by the Committee, at its discretion), and the Shares are
subject to a substantial risk of forfeiture, as provided in Article 8 herein.
2.28 "PERSON" shall have the meaning ascribed to such term in Section
3(a)(9) of the Exchange Act and used in Sections 13(d) and 14(d) thereof,
including a "group" as defined in Section 13(d).
2.29 "RESTRICTED STOCK" means an Award granted to a Participant
pursuant to Article 8 herein.
2.30 "RETIREMENT" shall have the meaning ascribed to such term in the
Retirement Plan for Employees of Sierra Pacific Power Company.
2.31 "SHARES" means the shares of common stock of the Company.
2.32 "STOCK APPRECIATION RIGHT" or "SAR" means an Award, granted alone
or in connection with a related Option, designated as an SAR, pursuant to the
terms of Article 7 herein.
2.33 "SUBSIDIARY" means any wholly-owned corporation, partnership,
venture, or other entity in which the Company holds one hundred percent (100%)
voting control.
2.34 "TANDEM SAR" means a SAR that is granted in connection with a
related Option, the exercise of which shall require forfeiture of the right to
purchase a Share under the related Option (and when a Share is purchased under
the Option, the Tandem SAR shall be similarly canceled).
2.35 "WINDOW PERIOD" means the period beginning on the third business
day following the date of public release of the Company's quarterly sales and
earnings information, and ending on the twelfth business day following such
date.
ARTICLE 3. ADMINISTRATION
3.1 THE COMMITTEE. The Plan shall be administered by the Compensation
and Organization Committee of the Board, or by any other Committee appointed by
the Board consisting of not less than two (2) nonemployee Directors. The members
of the Committee shall be appointed from time to time by, and shall serve at the
discretion of, the Board of Directors.
4
<PAGE>
The Committee shall be comprised solely of Directors who are eligible
to administer the Plan pursuant to Rule 16b-3(c)(2) under the Exchange Act.
However, if for any reason the Committee does not qualify to administer the
Plan, as contemplated by Rule 16b-3(c)(2) of the Exchange Act, the Board of
Directors may appoint a new Committee so as to comply with Rule 16b-3(c)(2).
3.2 AUTHORITY OF THE COMMITTEE. The Committee shall have full power
except as limited by law, the Articles of Incorporation, Bylaws of the Company,
subject to such other restricting limitations or directions as may be imposed by
the Board and subject to the provisions herein, to determine the size and types
of Awards; to determine the terms and conditions of such Awards in a manner
consistent with the Plan; to construe and interpret the Plan and any agreement
or instrument entered into under the Plan; to establish, amend, or waive rules
and regulations for the Plan's administration; and (subject to the provisions of
Article 15 herein) to amend the terms and conditions of any outstanding Award to
the extent such terms and conditions are within the discretion of the Committee
as provided in the Plan. Further, the Committee shall make all other
determinations which may be necessary or advisable for the administration of the
Plan. As permitted by law, the Committee may delegate its authorities as
identified hereunder.
3.3 DECISIONS BINDING. All determinations and decisions made by the
Committee pursuant to the provisions of the Plan and all related orders or
resolutions of the Board shall be final, conclusive, and binding on all persons,
including the Company, its stockholders, Employees, Participants, and their
estates and beneficiaries.
ARTICLE 4. SHARES SUBJECT TO THE PLAN
4.1 NUMBER OF SHARES. Subject to adjustment as provided in Section
4.3 herein, the total number of Shares available for grant under the Plan
shall be one million seven hundred fifty thousand (1,750,000). No more than
four hundred sixty six thousand six hundred sixty seven (466,667) of such
Shares may be issued pursuant to grants of Restricted Stock, and no more than
five hundred eighty three thousand three hundred thirty three (583,333) of
such Shares may be issued pursuant to grants of Bonus Stock. These Shares may
be either authorized but unissued or reacquired Shares.
The following rules will apply for purposes of the determination of the
number of Shares available for grant under the Plan:
(a) While an Award is outstanding, it shall be counted against the
authorized pool of Shares, regardless of its vested status.
(b) The grant of an Option or Restricted Stock shall reduce the
Shares available for grant under the Plan by the number of
Shares subject to such Award.
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(c) The grant of a Tandem SAR shall reduce the number of Shares
available for grant by the number of Shares subject to the
related Option (i.e., there is no double counting of Options
and their related Tandem SARs).
(d) The grant of a Freestanding SAR shall reduce the number of
Shares available for grant by the number of Freestanding SARs
granted.
(e) The Committee shall in each case determine the appropriate
number of Shares to deduct from the authorized pool in
connection with the grant of Performance Units and/or
Performance Shares.
(f) The grant of Bonus Stock shall reduce the number of Shares
available for grant by the number of Shares subject to the
Bonus Stock Award.
(g) To the extent that an Award is settled in cash rather than in
Shares, the authorized Share pool shall be credited with the
appropriate number of Shares represented by the cash
settlement of the Award, as determined at the sole discretion
of the Committee (subject to the limitation set forth in
Section 4.2 herein).
4.2 LAPSED AWARDS. If any Award granted under this Plan is canceled,
terminates, expires, or lapses for any reason (with the exception of the
termination of a Tandem SAR upon exercise of the related Option, or the
termination of a related Option upon exercise of the corresponding Tandem SAR),
any Shares subject to such Award shall again be available for the grant of an
Award under the Plan. However, in the event that prior to the Award's
cancellation, termination, expiration, or lapse, the holder of the Award at any
time received one or more "benefits of ownership" pursuant to such Award (as
defined by the Securities and Exchange Commission, pursuant to any rule or
interpretation promulgated under Section 16 of the Exchange Act), the Shares
subject to such Award shall not be made available for regrant under the Plan.
4.3 ADJUSTMENTS IN AUTHORIZED SHARES. In the event of any merger,
reorganization, consolidation, recapitalization, separation, liquidation, stock
dividend, split-up, Share combination, or other change in the corporate
structure of the Company affecting the Shares, such adjustment shall be made in
the number and class of Shares which may be delivered under the Plan, and in the
number and class of and/or price of Shares subject to outstanding Awards granted
under the Plan, as may be determined to be appropriate and equitable by the
Committee, in its sole discretion, to prevent dilution or enlargement of rights;
and provided that the number of Shares subject to any Award shall always be a
whole number.
ARTICLE 5. ELIGIBILITY AND PARTICIPATION
5.1 ELIGIBILITY. Persons eligible to participate in this Plan include
all Officers and Key Employees of the Company and its Subsidiaries, as
determined by the Committee, including Employees who are members of the Board,
but excluding Directors who are not Employees.
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5.2 ACTUAL PARTICIPATION. Subject to the provisions of the Plan, the
Committee may, from time to time, select from all eligible Employees, those to
whom Awards shall be granted and shall determine the nature and amount of each
Award.
ARTICLE 6. STOCK OPTIONS
6.1 GRANT OF OPTIONS. Subject to the terms and provisions of the Plan,
Options may be granted to eligible Employees at any time and from time to time
as shall be determined by the Committee. The Committee shall have discretion in
determining the number of Shares subject to Options granted to each Participant;
provided, however, that the maximum number of shares subject to Options which
may be granted to any single Participant during the term of the Plan is one
hundred fifty thousand (150,000). The Committee may grant ISOs, NQSOs, or a
combination thereof.
6.2 AWARD AGREEMENT. Each Option grant shall be evidenced by an Award
Agreement that shall specify the Option Price, the duration of the Option, the
number of Shares to which the Option pertains, and such other provisions as the
Committee shall determine. The Option Agreement also shall specify whether the
Option is intended to be an ISO within the meaning of Section 422 of the Code,
or a NQSO whose grant is intended not to fall under the provisions of Section
422 of the Code.
6.3 OPTION PRICE. The Option Price for each grant of an Option under
this Section 6.3 shall be at least equal to one hundred percent (100%) of the
Fair Market Value of a Share on the date the Option is granted.
6.4 DURATION OF OPTIONS. Each Option shall expire at such time as the
Committee shall determine at the time of grant; provided, however, that no
Option shall be exercisable later than the tenth (10th) anniversary date of its
grant.
6.5 DIVIDEND EQUIVALENTS. Simultaneous with the grant of an Option, the
Participant receiving the Option may be granted, at no additional cost, Dividend
Equivalents. Each Dividend Equivalent shall entitle the Participant to receive a
contingent right to be paid an amount equal to the dividends declared on a Share
on all record dates occurring during the period between the grant date of an
Option and the date the Option is exercised.
The underlying value of each Dividend Equivalent shall accrue as a book
entry in the name of each Participant holding the Dividend Equivalent. Payout of
the accrued value of a Dividend Equivalent shall occur only in the event that
the Option issued in tandem with the Dividend Equivalent is "in the money"
(i.e., the Fair Market Value of Shares underlying the Option as of the exercise
date exceeds the Option Price) as of the exercise date. Payout of Dividend
Equivalents shall be made in cash, in one lump sum, within thirty (30) days
following the exercise of the corresponding Option.
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6.6 EXERCISE OF OPTIONS. Options granted under the Plan shall be
exercisable at such times and be subject to such restrictions and conditions as
the Committee shall in each instance approve, which need not be the same for
each grant or for each Participant. However, in no event may an Option granted
under this Plan become exercisable prior to six (6) months following the date of
its grant.
6.7 PAYMENT. Options shall be exercised by the delivery of a written
notice of exercise to the Company, setting forth the number of Shares with
respect to which the Option is to be exercised, accompanied by full payment for
the Shares.
The Option Price upon exercise of any Option shall be payable to the
Company in full either: (a) in cash or its equivalent, or (b) by tendering
previously acquired Shares having an aggregate Fair Market Value at the time of
exercise equal to the total Option Price (provided that the Shares which are
tendered must have been held by the Participant for at least six (6) months
prior to their tender to satisfy the Option Price), or (c) by a combination of
(a) and (b).
The Committee also may allow cashless exercise as permitted under
Federal Reserve Board's Regulation T, subject to applicable securities law
restrictions, or by any other means which the Committee determines to be
consistent with the Plan's purpose and applicable law.
As soon as practicable after receipt of a written notification of
exercise and full payment, the Company shall deliver to the Participant, in the
Participant's name, Share certificates in an appropriate amount based upon the
number of Shares purchased under the Option(s).
6.8 RESTRICTIONS ON SHARE TRANSFERABILITY. The Committee may impose
such restrictions on any Shares acquired pursuant to the exercise of an Option
under the Plan as it may deem advisable, including, without limitation,
restrictions under applicable Federal securities laws, under the requirements of
any stock exchange or market upon which such Shares are then listed and/or
traded, and under any blue sky or state securities laws applicable to such
Shares.
6.9 TERMINATION OF EMPLOYMENT. Each Option Award Agreement shall set
forth the extent to which the Participant shall have the right to exercise the
Option following termination of the Participant's employment with the Company
and its Subsidiaries. Such provisions shall be determined in the sole discretion
of the Committee, shall be included in the Award Agreement entered into with
Participants, need not be uniform among all Options issued pursuant to the Plan,
and may reflect distinctions based on the reasons for termination of employment.
6.10 NONTRANSFERABILITY OF OPTIONS. No Option granted under the Plan
may be sold, transferred, pledged, assigned, or otherwise alienated or
hypothecated, other than by will or by the laws of descent and distribution.
Further, all Options granted to a Participant under the Plan shall be
exercisable during his or her lifetime only by such Participant or his or her
legal representative.
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ARTICLE 7. STOCK APPRECIATION RIGHTS
7.1 GRANT OF SARS. Subject to the terms and conditions of the Plan, a
SAR may be granted to an Employee at any time and from time to time as shall be
determined by the Committee. The Committee may grant Freestanding SARs, Tandem
SARs, or any combination of these forms of SAR.
The Committee shall have complete discretion in determining the number
of SARs granted to each Participant (subject to Article 4 herein) and,
consistent with the provisions of the Plan, in determining the terms and
conditions pertaining to such SARs; provided, however, that the maximum number
of SARs which may be granted to any single Participant during the term of the
Plan is one hundred fifty thousand (150,000).
The grant price of a Freestanding SAR shall equal the Fair Market Value
of a Share on the date of grant of the SAR. The grant price of Tandem SARs shall
equal the Option Price of the related Option. In no event shall any SAR granted
hereunder become exercisable within the first six (6) months of its grant.
7.2 EXERCISE OF TANDEM SARS. Tandem SARs may be exercised for all or
part of the Shares subject to the related Option upon the surrender of the right
to exercise the equivalent portion of the related Option. A Tandem SAR may be
exercised only with respect to the Shares for which its related Option is then
exercisable.
Notwithstanding any other provision of this Plan to the contrary, with
respect to a Tandem SAR granted in connection with an ISO: (i) the Tandem SAR
will expire no later than the expiration of the underlying ISO; (ii) the value
of the payout with respect to the Tandem SAR may be for no more than one hundred
percent (100%) of the difference between the Option Price of the underlying ISO
and the Fair Market Value of the Shares subject to the underlying ISO at the
time the Tandem SAR is exercised; and (iii) the Tandem SAR may be exercised only
when the Fair Market Value of the Shares subject to the ISO exceeds the Option
Price of the ISO.
7..3 EXERCISE OF FREESTANDING SARS. Freestanding SARs may be exercised
upon whatever terms and conditions the Committee, in its sole discretion,
imposes upon them.
7.4 SAR AGREEMENT. Each SAR grant shall be evidenced by an Award
Agreement that shall specify the grant price, the term of the SAR, and such
other provisions as the Committee shall determine.
7.5 TERM OF SARS. The term of a SAR granted under the Plan shall be
determined by the Committee, in its sole discretion; provided, however, that
such term shall not exceed ten (10) years.
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7.6 PAYMENT OF SAR AMOUNT. Upon exercise of a SAR, a participant shall
be entitled to receive payment from the Company in an amount determined by
multiplying:
(a) The difference between the Fair Market Value of a Share on the
date of exercise over the grant price; by
(b) The number of Shares with respect to which the SAR is
exercised.
At the discretion of the Committee, the payment upon SAR exercise may
be in cash, in Shares of equivalent value, or in some combination thereof.
7.7 RULE 16B-3 REQUIREMENTS. Notwithstanding any other provision of the
Plan, the Committee may impose such conditions on exercise of a SAR (including,
without limitation, the right of the Committee to limit the time of exercise to
specified periods) as may be required to satisfy the requirements of Section 16
(or any successor rule) of the Exchange Act.
For example, if the Participant is an Insider, the ability of the
Participant to exercise SARs for cash may be limited to Window Periods. however,
if the Committee determines that the Participant is not an Insider, or if the
securities laws change to permit greater freedom of exercise of SARs, then the
Committee may permit exercise at any point in time, to the extent the SARs are
otherwise exercisable under the Plan.
7.8 TERMINATION OF EMPLOYMENT. Each SAR Award Agreement shall set forth
the extent to which the Participant shall have the right to exercise the SAR
following termination of the Participant's employment with the Company and its
Subsidiaries. Such provisions shall be determined in the sole discretion of the
Committee, shall be included in the Award Agreement entered into with
Participants, need not be uniform among all SARs issued pursuant to the Plan,
and may reflect distinctions based on the reasons for termination of employment.
7.9 NONTRANSFERABILITY OF SARS. No SAR granted under the Plan may be
sold, transferred, pledged, assigned, or otherwise alienated or hypothecated,
other than by will or by the laws of descent and distribution. Further, all SARs
granted to a Participant under the Plan shall be exercisable during his or her
lifetime only by such Participant or his or her legal representative.
ARTICLE 8. RESTRICTED STOCK
8.1 GRANT OF RESTRICTED STOCK. Subject to the terms and provisions of
the Plan, the Committee, at any time and from time to time, may grant Shares of
Restricted Stock to eligible Employees in such amounts as the Committee shall
determine.
8.2 RESTRICTED STOCK AGREEMENT. Each Restricted Stock grant shall be
evidenced by a Restricted Stock Agreement that shall specify the Period of
Restriction, or Periods, the number of Restricted Stock Shares granted, and such
other provisions as the Committee shall determine.
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8.3 TRANSFERABILITY. Except as provided in this Article 8, the Shares
of Restricted Stock granted herein may not be sold, transferred, pledged,
assigned, or otherwise alienated or hypothecated until the end of the applicable
Period of Restriction established by the Committee and specified in the
Restricted Stock Agreement, or upon earlier satisfaction of any other
conditions, as specified by the Committee in its sole discretion and set forth
in the Restricted Stock Agreement. However, in no event may any Restricted Stock
granted under the Plan become vested in a Participant prior to six (6) months
following the date of its grant. All rights with respect to the Restricted Stock
granted to a Participant under the Plan shall be available during his or her
lifetime only to such Participant.
8.4 OTHER RESTRICTIONS. The Committee shall impose such other
conditions and/or restrictions on any Shares of Restricted Stock granted
pursuant to the Plan as it may deem advisable including, without limitation, a
requirement that Participants pay a stipulated purchase price for each Share of
Restricted Stock, restrictions based upon the achievement of specific
performance goals (Company-wide, divisional, and/or individual), and/or
restrictions under applicable Federal or state securities laws; and may legend
the certificates representing Restricted Stock to give appropriate notice of
such restriction.
8.5 CERTIFICATE LEGEND. In addition to any legends placed on
certificates pursuant to Section 8.4 herein, each certificate representing
Shares of Restricted Stock granted pursuant to the Plan may bear the following
legend:
"The sale or other transfer of the Shares of stock represented by this
certificate, whether voluntary, involuntary, or by operation of law, is
subject to certain restrictions on transfer as set forth in the Sierra
Pacific Resources Executive Long-Term Incentive Plan, and in a
Restricted Stock Agreement. A copy of the Plan and such Restricted
Stock Agreement may be obtained from Sierra Pacific Resources."
The Company shall have the right to retain the certificates
representing Shares of Restricted Stock in the Company's possession until such
time as all conditions and/or restrictions applicable to such Shares have been
satisfied.
8.6 REMOVAL OF RESTRICTIONS. Except as otherwise provided in this
Article 8, Shares of Restricted Stock covered by each Restricted Stock grant
made under the Plan shall become freely transferable by the Participant after
the last day of the Period of Restriction. Once the Shares are released from the
restrictions, the Participant shall be entitled to have the legend required by
Section 8.5 removed from his or her Share certificate.
8.7 VOTING RIGHTS. During the Period of Restriction, Participants
holding Shares of Restricted Stock granted hereunder may exercise full voting
rights with respect to those Shares.
8.8 DIVIDENDS AND OTHER DISTRIBUTIONS. During the Period of
Restriction, Participants holding Shares of Restricted Stock granted hereunder
shall be credited with all regular cash dividends paid with respect to all
shares while they are so held. Except as provided in the
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succeeding sentence, all cash dividends and other distributions paid with
respect to Shares of Restricted Stock shall be credited to Participants subject
to the same restrictions on transferability and forfeitability as the Shares of
Restricted Stock with respect to which they were paid. If any such dividends or
distributions are paid in Shares, the Shares shall be subject to the same
restrictions on transferability and forfeitability as the Shares of Restricted
Stock with respect to which they were paid. Subject to the succeeding paragraph,
and to the restrictions on vesting and the forfeiture provisions, all dividends
credited to a Participant shall be paid to the Participant within forty-five
(45) days following the full vesting of the Shares of Restricted Stock with
respect to which such dividends were earned.
In the event that any dividend constitutes a "derivative security" or
an "equity security" pursuant to rule 16(a) under the Exchange Act, such
dividend shall be subject to a vesting period equal to the longer of: (i) the
remaining vesting period f the Shares of Restricted Stock with respect to which
the dividend is paid; or (ii) six (6) months. The Committee shall establish
procedures for the application of this provision.
8.9 TERMINATION OF EMPLOYMENT. Each Restricted Stock Award Agreement
shall set forth the extent to which the Participant shall have the right to
receive unvested Restricted Shares following termination of the Participant's
employment with the Company and its Subsidiaries. Such provisions shall be
determined in the sole discretion of the Committee, shall be included in the
Award Agreement entered into with Participants, need not be uniform among all
Shares of Restricted Stock issued pursuant to the Plan, or among Participants,
and may reflect distinctions based on the reasons for termination of employment.
ARTICLE 9. PERFORMANCE UNITS AND PERFORMANCE SHARES
9.1 GRANT OF PERFORMANCE UNITS/SHARES. Subject to the terms of the
Plan, Performance Units and Performance Shares may be granted to eligible
Employees at any time and from time to time, as shall be determined by the
Committee. The Committee shall have complete discretion in determining the
number of Performance Units and Performance Shares granted to each Participant;
provided, however, that unless and until the Committee determines that a grant
of Performance Shares and/or Performance Shares Units shall not be designed to
qualify for the "performance-based" exemption under Code Section 162(m), the
maximum payout to any Named Executive Officer with respect to Performance Units
and/or Performance Shares granted in any one (1) fiscal year of the Company
shall be one million dollars ($1,000,000).
9.2 VALUE OF PERFORMANCE UNITS/SHARES. Each Performance Unit shall have
an initial value that is established by the Committee at the time of grant. Each
Performance Share shall have an initial value equal to the Fair Market Value of
a Share on the date of grant. The Committee shall set performance goals in its
discretion which, depending on the extent to which they are met, will determine
the number and/or value of Performance Units/Shares that will be paid out to the
Participants. The time period during which the performance goals must be met
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shall be called a "Performance Period." Performance Periods shall, in all cases,
exceed six (6) months in length.
Unless and until the Committee proposes for shareholder vote a change
in the general performance measures, the attainment of which shall determine the
number and/or value of Performance Units and/or Performance Shares granted under
the Plan, the performance measure(s) to be used for purposes of grants to Named
Executive Officers shall be selected from among the following activities:
(a) Total shareholder return (measured as the sum of Share
appreciation and dividends declared) in relation to the Dow
Jones Utilities Index.
(b) Return on invested capital in relation to target objectives.
(c) Share Earnings/Earnings Growth in relation to target
objectives.
(d) Cash Flow/Cash flow Growth in relation to target objectives.
In the event that applicable tax and/or securities laws change to
permit Committee discretion to alter the governing performance measures without
obtaining shareholder approval of such changes, the Committee shall have sole
discretion to make such changes without obtaining shareholder approval. In
addition, in the event that the Committee determines that it is advisable to
grant Performance Units and/or Performance Shares which shall not qualify for
the "performance-based" exemption under Code Section 162(m), the Committee may
make such grants without satisfying the requirements of Code Section 162(m).
9.3 EARNING OF PERFORMANCE UNITS/SHARES. After the applicable
Performance Period has ended, the holder of Performance Units/Shares shall be
entitled to receive payout on the number and value of Performance Units/Shares
earned by the Participant over the Performance Period, to be determined as a
function of the extent to which the corresponding performance goals have been
achieved.
9.4 FORM AND TIMING OF PAYMENT OF PERFORMANCE UNITS/SHARES. Payment of
earned Performance Units/Shares shall be made in a single lump sum, within
seventy-five (75) calendar days following the close of the applicable
Performance Period. The Committee, in its sole discretion, may pay earned
Performance Units/Shares in the form of cash or in Shares (or in a combination
thereof), which have an aggregate Fair Market Value equal to the value of the
earned Performance Units/Shared at the close of the applicable Performance
Period. Such Shares may be granted subject to any restrictions deemed
appropriate by the Committee.
Prior to the beginning of each performance Period, participants may
elect to defer the receipt of Performance Unit/Share payout upon such terms as
the Committee deems appropriate.
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Participants shall be entitled to receive any dividends declared with
respect to Shares which have been earned in connection with grants of
Performance Units and/or Performance Shares which have been earned, but not yet
distributed to Participants (such dividends shall be subject to the same
accrual, forfeiture, and payout restrictions as apply to dividends earned with
respect to Shares of Restricted Stock, as set forth in Section 8.8 herein). In
addition, Participants may, at the discretion of the Committee, be entitled to
exercise their voting rights with respect to such Shares.
9.5 TERMINATION OF EMPLOYMENT DUE TO DEATH, DISABILITY, OR RETIREMENTS.
In the event the employment of a Participant is terminated by reason of Death,
Disability, or Retirement during a Performance Period, the Participant shall
receive a prorated payout of the Performance Units/Shares. The prorated payout
shall be determined by the Committee, in its sole discretion, and shall be based
upon the length of time that the Participant held the Performance Units/Shares
during the Performance Period, and shall further be adjusted based on the
achievement of the preestablished performance goals.
9.6 TERMINATION OF EMPLOYMENT FOR OTHER REASONS. In the event that a
Participant's employment terminates for any reason other than those reasons set
forth in Section 9.5 herein, all Performance Units/Shares shall be forfeited by
the Participant to the Company.
9.7 NONTRANSFERABILITY. Performance Units/Shares may not be sold,
transferred, pledged, assigned, or otherwise alienated or hypothecated, other
than by will or by the laws of descent and lifetime only by the participant or
the Participant's legal representative.
ARTICLE 10. BONUS STOCK
The Committee shall have the right to grant other Awards which may
include, without limitations, the grant of Shares based on certain conditions,
the payment of cash based on performance criteria established by the Committee,
and the payment of Shares in lieu of cash under other Company incentive bonus
programs. Payment under or settlement of any such Awards shall be made in such
manner and at such times as the Committee may determine.
ARTICLE 11. BENEFICIARY DESIGNATION
Each Participant under the Plan may, from time to time, name any
beneficiary or beneficiaries (who may be named contingently or successively) to
whom any benefit under the Plan is to be paid in case of his or her death before
he or she receives any or all of such benefit. Each such designation shall
revoke all prior designations by the same Participant, shall be in a form
prescribed by the Company, and will be effective only when filed by the
Participant in writing with the Company during the Participant's lifetime. In
the absence of any such designation, benefits remaining unpaid at the
Participant's death shall be paid to the Participant's estate.
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The spouse of a married participant domiciled in a community property
jurisdiction shall join in any designation of beneficiary or beneficiaries other
than the spouse.
ARTICLE 12. DEFERRALS
The Committee may permit a Participant to defer such Participant's
receipt of the payment of cash or the delivery of Shares that would otherwise be
due to such Participant by virtue of (1) the exercise of an Option or SAR, (2)
the lapse or waiver of restrictions with respect to Restricted Stock, or (3) the
satisfaction of any requirements or goals with respect to Performance
Units/Shares, or Bonus Stock. If any such deferral election is required or
permitted, the Committee shall, in its sole discretion, establish rules and
procedures for such payment deferrals.
ARTICLE 13. RIGHTS OF EMPLOYEES
13.1 EMPLOYMENT. Nothing in the Plan shall interfere with or limit in
any way the right of the Company to terminate any Participant's employment at
any time, for any reason or no reason in the Company's sole discretion, nor
confer upon any Participant any right to continue in the employ of the Company.
For purposes of the Plan, transfer of employment of a Participant
between the Company and any one of its Subsidiaries (or between Subsidiaries)
shall not be deemed a termination of employment.
13.2. PARTICIPATION. No Employee shall have the right to be selected to
receive an Award under this Plan, or, having been so selected, to be selected to
receive a future Award.
ARTICLE 14. CHANGE IN CONTROL
Upon the occurrence of a Change in Control, as defined in Section 2.6
unless otherwise specifically prohibited by the terms of Section 19 herein:
(a) Any and all Options and SARs granted hereunder shall become
immediately exercisable;
(b) Any restriction periods and restrictions imposed on Restricted
Shares shall lapse;
(c) The target payout opportunity attainable under all outstanding
Awards of Restricted Stock, Performance Units, Performance
Shares, and Bonus Stock shall be deemed to have been fully
earned for the entire Performance Period(s) as of the
effective date of the Change in Control. The vesting of all
Awards denominated in Shares shall be accelerated as of the
effective date of the Change in Control, and there shall be
paid out
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in cash to Participants within thirty (30) days following the
effective date of the Change in Control a pro rata portion of
all targeted cash payout opportunities associated with
outstanding cash-based Awards, based on the number of complete
and partial calendar months within the Performance Period
which had elapsed as of such effective date; provided,
however, that there shall not be an accelerated payout with
respect to Awards of Restricted Stock, Performance Units,
Performance Shares, or Bonus Stock which were granted less
than six (6) months prior to the effective date of the Change
in Control;
(d) Subject to Article 15 herein, the Committee shall have the
authority to make any modifications to the Awards as
determined by the Committee to be appropriate before the
effective date of the Change in Control, but not after.
ARTICLE 15. AMENDMENT, MODIFICATION, AND TERMINATION
15.1 AMENDMENT, MODIFICATION, AND TERMINATION. The Board may at any
time and from time to time, alter, amend, suspend or terminate the Plan in whole
or in part; provided, that no amendment which requires shareholder approval in
order for the Plan to continue to comply with Rule 16b-3 under the Exchange Act,
including any successor to such Rule, shall be effective unless such amendment
shall be approved by the requisite vote of shareholders of the Company entitled
to vote thereon.
The Committee shall not have the authority to cancel outstanding Awards and
issue substitute Awards in replacement thereof.
15.2. AWARDS PREVIOUSLY GRANTED. No Termination, amendment, or
modification of the Plan shall adversely affect in any material way any Award
previously granted under the Plan, without the written consent of the
Participant holding such Award.
ARTICLE 16. WITHHOLDING
16.1 TAX WITHHOLDING. The company shall have the power and the right to
deduct or withhold, or require a Participant to remit to the Company, an amount
sufficient to satisfy Federal, state, and local taxes (including the
Participant's FICA obligation) required by law to be withheld with respect to
any taxable event arising out of or as a result of this Plan.
16.2 SHARE WITHHOLDING. With respect to withholding required upon the
exercise of Options or SARs, upon the lapse of restrictions on Restricted Stock,
or upon any other taxable event arising out of or as a result of Awards granted
hereunder, Participants may elect, subject to the approval of the Committee, to
satisfy the withholding requirement, in whole or in part, by having the Company
withhold Shares having a Fair Market Value on the date the tax is to be
determined equal to the minimum statutory total tax which could be imposed on
the transaction.
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All elections shall be irrevocable, made in writing, signed by the Participant,
and elections by Insiders shall additionally comply with the applicable
requirement set forth in (a) or (b) of this Section 16.2.
(a) AWARDS HAVING EXERCISE TIMING WITHIN PARTICIPANTS' DISCRETION.
The Insider must either:
(i) Deliver written notice of the stock withholding
election to the Committee at least six (6) months
prior to the date specified by the Insider on which
the exercise of the Award is to occur; or
(ii) Make the stock withholding election in connection
with an exercise of an Award which occurs during a
Window Period.
(b) AWARDS HAVING A FIXED EXERCISE/PAYOUT SCHEDULE WHICH IS
OUTSIDE INSIDER'S CONTROL. The Insider must either:
(i) Deliver written notice of the stock withholding
election to the Committee at least six (6) months
prior to the date on which the taxable event (e.g.,
exercise or payout) relating to the Award is
scheduled to occur; or
(ii) Make the stock withholding election during a Window
Period which occurs prior to the scheduled taxable
event relating to the Award (for this purpose, an
election may be made prior to such a Window Period,
provided that it becomes effective during a Window
Period occurring prior to the applicable taxable
event).
ARTICLE 17. INDEMNIFICATION
Each person who is or shall have been a member of the Committee, or of
the Board, shall be indemnified and held harmless by the Company against and
from any loss, cost, liability, or expense that may be imposed upon or
reasonably incurred by him or her in connection with or resulting from any
claim, action, suit, or proceeding to which he or she may be a party or in which
he or she may be involved by reason of any action taken or failure to act under
the Plan and against and from any and all amounts paid by him or her in
settlement thereof, with the Company's approval, or paid by him or her in
satisfaction of any judgment in any such action, suit, or proceeding against him
or her, provided he or she shall give the Company an opportunity, at its own
expense, to handle and defend the same before he or she undertakes to handle and
defend it on his or her own behalf. The foregoing right of indemnification shall
not be exclusive of any other rights of indemnification to which such persons
may be entitled under the Company's Articles of Incorporation or Bylaws, as a
matter of law, or otherwise, or any power that the Company may have to indemnify
them or hold them harmless.
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ARTICLE 18. SUCCESSORS
All obligations of the Company under the Plan, with respect to Awards
granted hereunder, shall be binding on any successor to the Company, whether the
existence of such successor is the result of a direct or indirect purchase,
merger, consolidation, or otherwise, of all or substantially all of the business
and/or assets of the Company.
ARTICLE 19. LEGAL CONSTRUCTION
19.1 GENDER AND NUMBER. Except where otherwise indicated by the
context, any masculine term used herein also shall include the feminine; the
plural shall include the singular and the singular shall include the plural.
19.2 SEVERABILITY. In the event any provision of the Plan shall be held
illegal or invalid for any reason, the illegality or invalidity shall not affect
the remaining parts of the Plan, and the Plan shall be construed and enforced as
if the illegal or invalid provision had not been included.
19.3 REQUIREMENTS OF LAW. The granting of Awards and the issuance of
Shares under the Plan shall be subject to all applicable laws, rules, and
regulations, and to such approvals by any governmental agencies or national
securities exchanges as may be required.
Notwithstanding any other provision set forth in the Plan, if required
by the then-current Section 16 of the Exchange Act, any "derivative security" or
"equity security" offered pursuant to the Plan to any Insider may not be sold or
transferred within the minimum time limits specified or required in such rule.
The terms "equity security" and "derivative security" shall have the meanings
ascribed to them in the then-current Rule 16(a) under the Exchange Act.
19.4 SECURITIES LAW COMPLIANCE. With respect to Insiders, transactions
under this Plan are intended to comply with all applicable conditions of the
Federal securities laws. To the extent any provision of the plan or action by
the Committee fails to so comply, it shall be deemed null and void, to the
extent permitted by law and deemed advisable by the Committee.
19.5 GOVERNING LAW. To the extent not preempted by Federal law, the
Plan, and all agreements hereunder, shall be construed in accordance with and
governed by the laws of the State of Nevada.
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Exhibit 99.2
SIERRA PACIFIC RESOURCES
1992 NON-EMPLOYEE DIRECTOR STOCK PLAN
1. PURPOSE OF THE PLAN
The purpose of the 1992 Non-Employee Director Stock Plan is to provide
ownership of the Company's Stock to non-employee members of the Board of
Directors in order to improve the Company's ability to attract and retain
highly-qualified individuals to serve as directors of the Company; to provide
competitive compensation for Board service and to strengthen the commonality of
interest between directors and shareholders.
2. DEFINITIONS
When used herein, the following terms shall have the respective
meanings set forth below:
(a) "Annual Retainer" means the annual retainer payable to all
Non-employee Directors (exclusive of any per meeting fees or expenses
reimbursements).
(b) "Annual Meeting of Stockholders" means the annual meeting of
stockholders of the Company or any Participating Company at which directors of
the Company or the Participating Company, as the case may be, are elected.
(c) "Board" means the Board of Directors of the Company.
(d) "Committee" means a committee whose members meet the requirements
of Section 4(a) hereof, appointed from time to time by the Board to administer
the Plan.
(e) "Common Stock" means the common stock, $1.00 par value, of the
Company.
(f) "Company" means Sierra Pacific Resources, a Nevada corporation, and
any successor corporation.
(g) "Employees" means any officer or employee of the Company or of any
Subsidiary (whether or not such Subsidiary participates in the Plan).
(h) "Non-employee Director" or "Participant" means any person who is
elected or appointed to the Board of Directors of any Participating Company and
who is not an Employee.
(i) "Participating Company" means the Company and any Subsidiary of the
Company whose participation in the Plan has been approved by both the Company's
and such subsidiary's board of directors.
<PAGE>
(j) "Plan" means the Company's 1992 Non-employee Director Stock Plan as
set forth herein, as it may be amended from time to time.
(k) "Plan Year" means the period commencing on the effective date of
the Plan and ending the next following December 31 and thereafter the calendar
year.
(l) "Stock Payment" means the fixed portion of the Annual Retainer to
be paid to Non- employee Directors in shares of Common Stock rather than cash
for services rendered as a director of a Participating Company as provided in
Section 6 hereof including that portion of the Stock Payment resulting from the
election specified in Section 7 hereof.
(m) "Subsidiary" means any corporation that is a "subsidiary
corporation" of the Company, as that term is defined in Section 424(f) of the
Internal Revenue Code of 1986.
3. SHARES OF COMMON STOCK SUBJECT TO THE PLAN
Subject to adjustment as provided in Section 10 below, the maximum
aggregate number of shares of Common Stock that may be issued under the Plan is
150,000 shares. The Common Stock to be issued under the Plan will be made
available from authorized but unissued shares of Common Stock, and the Company
shall set aside and reserve for issuance under the Plan said number of shares.
4. ADMINISTRATION OF THE PLAN
(a) The Plan will be administered by the Committee, which will consist
of three or more persons who are not eligible to participate in the Plan.
Members of the Committee need not be members of the Board. The Company shall pay
all costs of administration of the Plan.
(b) Subject to the express provisions of the Plan, the Committee has
and may exercise such powers and authority of the Board as may be necessary or
appropriate for the Committee to carry out its functions under the Plan. Without
limiting the generality of the foregoing, the Committee shall have full power
and authority (i) to determine all questions of fact that may arise under the
Plan, (ii) to interpret the Plan and to make all other determinations necessary
or advisable for the administration of the Plan, and (iii) to prescribe, amend,
and rescind rules and regulations relating to the Plan, including, without
limitation, any rules which the Committee determines are necessary or
appropriate to ensure that the Company, each Participating Company and the Plan
will be able to comply with all applicable provisions of any federal, state or
local law, including securities laws. All interpretations, determinations, and
actions by the Committee will be final, conclusive, and binding upon all
parties. Any action of the Committee with respect to the administration of the
Plan shall be taken pursuant to a majority vote at a meeting of the Committee
(at which members may participate by telephone) or by the unanimous written
consent of its members.
2
<PAGE>
(c) Neither the Company, nor any other Participating Company, nor any
representatives, employees or agents of any Participating Company, nor any
member of the Board or the Committee will be liable for any damages resulting
from any action or determination made by the Board or the Committee with respect
to the Plan or any transaction arising under the Plan or any omission in
connection with the Plan in the absence of willful misconduct or gross
negligence.
5. PARTICIPATION IN THE PLAN
(a) All Non-employee Directors shall participate in the Plan, subject
to the conditions and limitations of the Plan, so long as they remain eligible
to participate in the Plan.
(b) No Non-employee Director shall be eligible for a Stock Payment if,
at the time said Stock Payment will otherwise be made, such Non-employee
Director owns (or is deemed to own) directly or indirectly, shares of Common
Stock representing more than five percent of the total combined voting power of
all classes of stock of the Company. The compensation, if any, of such directors
shall be determined by the Board.
6. DETERMINATION OF ANNUAL RETAINERS AND STOCK PAYMENTS
(a) The Board shall determine the Annual Retainer for all Non-employee
Directors of the Company and all Participating Companies.
(b) Each director of one or more Participating Companies who is a
Non-employee Director immediately following the date of the Annual Meeting of
Stockholders of one or more Participating Companies shall receive a Stock
Payment as a portion of the Annual Retainer payable to such director as provided
in the Plan for serving in such capacities. The number of shares to be issued to
each Participant as a Stock Payment shall be determined by dividing the
applicable Market Price into the lesser of (i) the amount of the Annual Retainer
payable to such Participant in excess of $10,000, or (ii) one-half of the Annual
Retainer payable to such Participant; PROVIDED, HOWEVER, that no fractional
shares shall be issued (cash shall be paid in lieu thereof). The "Market Price"
of Common Stock issued by the Company under the Plan shall be the average daily
high and low sale prices of the Common Stock on the composite tape for stocks
listed on the New York Stock Exchange for all trading days during the calendar
month preceding the date of the applicable Annual Meeting of Stockholders of the
Company. Such Market Price shall be used to determine the number of shares of
Common Stock to be issued to Non-employee Directors of all Participating
Companies for the current year. Certificates evidencing the shares of Common
Stock constituting Stock Payments shall be registered in the respective names of
the Participants and shall be issued, together with a cash payment for any
fractional share, to each Participant as soon as practicable following the
respective Annual Meeting of Stockholders. The cash portion of the Annual
Retainer shall be paid to Non-employee Directors at such times and in such
manner as may be determined by the Board.
(c) No Non-employee Director shall be required to forfeit or otherwise
return to the Company any shares of Common Stock issued to him or her as a Stock
Payment pursuant to the Plan
3
<PAGE>
(including any shares of Common Stock received as a result of an election under
Section 7) notwithstanding any change in status of such Non-employee Director
which renders him or her ineligible to continue as a Participant in the Plan.
Any person who is a Non-employee Director immediately following the date of the
respective Participating Company's Annual Meeting of Stockholders shall be
entitled to receive a Stock Payment as a portion of the applicable Annual
Retainer notwithstanding any change in status of such Non-employee Director
which renders such director ineligible to continue participation in the Plan
prior to delivery of certificates evidencing shares of Common stock.
7. ELECTION TO INCREASE AMOUNT OF STOCK PAYMENT
In lieu of receiving the cash portion of his or her Annual Retainer, a
Participant may make a written election to reduce such Annual Retainer by a
specified dollar amount and have such amount applied to purchase additional
shares of Common Stock of the Company. The election shall be made on a form
provided by the Committee and must be returned to Committee prior to the earlier
of (i) six months prior to the Annual Meeting of Stockholders of the Company or
the Participating Company, as the case may be, or (ii) the first day of the Plan
Year to which the election relates. The election form shall state the amount by
which the Participant desires to reduce the cash portion of his or her Annual
Retainer, which amount shall be advanced by the Participating Company to the
date that the Stock Payment is to be made under this Plan and shall be applied
toward the purchase of Common Stock on the same date that the Stock Payment is
determined; PROVIDED, HOWEVER, that no fractional shares may be purchased. As
such, any funds withheld but not able to be applied to the purchase of whole
shares shall be paid to the Participant in cash. No Participant shall be allowed
to change or revoke any election for the relevant year, but may change his or
her election for any subsequent Plan Year.
8. ELECTION TO DEFER RECEIPT OF STOCK PAYMENT
(a) In lieu of receiving the Stock Payment following the date of the
Annual Meeting of stockholders, a Participant may make a written election to
defer such receipt until he ceases to be a Non-Employee Director of the Company
or any Subsidiary or until such other date as shall be specified on the election
form and approved by the Committee. The election shall be made on a form
provided by the Committee and must be returned to the Committee prior to the
earlier of (i) six months prior to the Annual Meeting or Stockholders of the
Company or the Participating Company, as the case may be, or (ii) the first day
of the Plan Year to which the election relates. No Participant shall be allowed
to change or revoke any election for the relevant year, but may change his or
her election for any subsequent Plan Year.
(b) A Participant who has elected to defer the receipt of the Stock
Payment shall be an unsecured creditor of the Company with respect to the amount
of the deferral and not a shareholder of the Company with respect to the shares
of Common Stock which have been deferred. A Participant who has elected to defer
the receipt of the Stock Payment shall not be entitled to cash dividends or the
right to vote such shares. However, the Company shall pay to such Participant as
4
<PAGE>
additional compensation and not as a dividend the amount of any cash dividends
which would havebeen paid to such Participant had he or she then been the owner
of the shares of Common Stock which have been deferred.
(c) A Participant may file with the Committee a written designation of
a beneficiary or beneficiaries (subject to such limitations as to the classes
and number of beneficiaries and contingent beneficiaries and such other
limitations as the Committee from time to time may prescribe) to receive, in the
event of the death of such Participant, undelivered shares of Common Stock. A
Participant may from time to time revoke or change any such designation of
beneficiary. Any designation or beneficiary under the Plan shall be controlling;
PROVIDED, HOWEVER, that if the Committee shall be in doubt as to the right of
such beneficiary to receive any such shares, the same may be delivered to the
legal representatives of the Participant, in which case the Company, the
Committee and the members thereof shall not be under any further liability to
anyone.
9. STOCKHOLDER RIGHTS
Non-employee Directors shall not be deemed for any purpose to be or
have rights as stockholders of the Company with respect to any shares of Common
Stock except as and when such shares are issued and then only from the date of
the certificate therefor. No adjustment shall be made for dividends or
distributions or other rights for which the record date precedes the date of
such stock certificate.
10. ADJUSTMENT FOR CHANGES IN CAPITALIZATION
If the outstanding shares of Common Stock of the Company are increased,
decreased, or exchanged for a different number or kind of shares or other
securities, or if additional shares or new or different shares or other
securities are distributed with respect to such shares of Common Stock or other
securities, through merger, consolidation, sale of all or substantially all of
the property of the Company, reorganization or recapitalization,
reclassification, stock dividend, stock split, reverse stock split, combination
of shares, rights offering, distribution of assets or other distribution with
respect to such shares of Common Stock or other securities or other change in
the corporate structure or shares of Common Stock, the maximum number of shares
and/or the kind of shares that may be issued under the Plan may be appropriately
adjusted by the Committee. Any determination by the Committee as to any such
adjustment will be final, binding, and conclusive. The maximum number of shares
issuable under the Plan as a result of any such adjustment shall be rounded down
to the nearest whole share.
11. CONTINUATION OF DIRECTOR OR OTHER STATUS
Nothing in the Plan or in any instrument executed pursuant to the Plan
or any action taken pursuant to the Plan shall be construed as creating or
constituting evidence of any agreement or understanding, express or implied,
that the Company or any other Participating Company, as the case may be, will
retain a Non-employee Director as a director or in any other capacity for any
period of
5
<PAGE>
time or at a particular retainer or other rate of compensation, as conferring
upon any Participant any legal or other right to continue as a director r in any
other capacity, or as limiting, interfering with or otherwise affecting the
right of a Participating Company to terminate a Participant in his or her
capacity as a director or otherwise at any time for any reason, with or without
cause, and without regard to the effect that such termination might have upon
him or her as a Participant under the Plan.
12. COMPLIANCE WITH GOVERNMENT REGULATIONS
Neither the Plan nor the Company shall be obligated to issue any shares
of Common Stock pursuant to the Plan at any time unless and until all applicable
requirements imposed by any federal and state securities and other laws, rules,
and regulations, by any regulatory agencies, or by any stock exchanges upon
which the Common Stock may be listed have been fully met. As a condition
precedent to any issuance of shares of Common Stock and delivery of certificates
evidencing such shares pursuant to the Plan, the Board or the Committee may
require a Participant to take any such action and to make any such covenants,
agreements and representations as the Board or the Committee, as the case may
be, in its discretion deems necessary or advisable to ensure compliance with
such requirements. The Company shall in no event be obligated to register the
shares of Common Stock issued or issuable under the Plan pursuant to the
Securities Act of 1933, as now or hereafter amended, or to qualify or register
such shares under any securities laws of any state upon their issuance under the
Plan or at any time thereafter, or to take any other action in order to cause
the issuance and delivery of such shares under the Plan or any subsequent offer,
sale or other transfer of such shares to comply with any such law, regulation or
requirement. Participants are responsible for complying with all applicable
federal and state securities and other laws, rules and regulations in connection
with any offer, sale or other transfer of the shares of Common Stock issued
under the Plan or any interest therein including, without limitation, compliance
with the registration requirements of the Securities Act of 1933, as amended
(unless an exemption therefrom is available), or with the provisions of Rule 144
promulgated thereunder, if available, or any successor provisions.
13. NONTRANSFERABILITY OF RIGHTS
No Participant shall have the right to assign the right to receive any
Stock Payment or any other right or interest under the Plan, contingent or
otherwise, or to cause or permit any encumbrance, pledge or charge of any nature
to be imposed on any such Stock Payment (prior to the issuance of stock
certificates evidencing such Stock Payment) or any such right or interest.
14. AMENDMENT OF TERMINATION OF PLAN
(a) The Board will have the power, in its discretion, to amend, suspend
or terminate the Plan at any time. No such amendment will, without approval of
the stockholders of the company:
(i) Change the class of persons eligible to receive Stock
Payment under the Plan or otherwise modify the requirements as to
eligibility for participation in the Plan;
6
<PAGE>
(ii) Materially increase the benefits accruing to Participants
under the Plan; or
(iii) Increase the number of shares of Common Stock which may
be issued under the Plan (except for adjustments as provided in Section
10 hereof).
(b) No amendment, suspension or termination of the Plan will, without
the consent of the Participant, alter, terminate, impair, or adversely affect
any right or obligations under any Stock Payment previously granted under the
Plan to such Participant, unless such amendment, suspension or termination is
required by applicable law.
(c) Notwithstanding the foregoing, the Board may, without further
action by the stockholders of the Company, amend the Plan or modify Stock
Payments under the Plan (i) in response to changes in securities or other laws,
or rules, regulations or regulatory interpretations thereof, applicable to the
Plan, or (ii) to comply with stock exchange rules or requirements.
(d) Notwithstanding the foregoing, any provision of the Plan that
either states the amount and price of securities to be issued under the Plan and
specifies the price and timing of such issuances, or set forth a formula that
determines the amount, price and timing of such issuances, shall not be amended
more than once every six months, other than to comport with changes in the
Internal Revenue Code, the Employee Retirement Income Security Act, or the rules
thereunder.
15. GOVERNMENT LAW
The laws of the State of Nevada shall govern and control the
interpretation and application of the terms of the Plan.
16. EFFECTIVE DATE AND DURATION OF THE PLAN
This Plan will become effective upon (a) adoption by the
Board, and (b) approval by the affirmative votes of the holders of the majority
of the stock of the Company present, or represented, and entitled to vote at a
duly held meeting of the stockholders of the Company; PROVIDED, HOWEVER, that no
shares of Common Stock shall be issued or issuable under the Plan unless and
until the Company receives a satisfactory opinion from counsel addressing such
matters as the Board or the President of the Company may deem necessary or
desirable. Unless previously terminated by the Board, the Plan will terminate on
December 31, 2001.
7
<PAGE>
SIERRA PACIFIC RESOURCES
EMPLOYEE STOCK PURCHASE PLAN
RESTATEMENT NO. 1
--------------------
1. PURPOSE
Sierra Pacific Resources (the "Company") established the Sierra
Pacific Resources Employee Stock Purchase Plan (the "Plan"), which was
effective originally on June 14, 1984 and has been restated in its entirety
for the purpose of providing eligible employees of the Company and any
subsidiary thereof with the opportunity to become stockholders of the
Company. It is the intention of the Company that the Plan qualify as an
"employee stock purchase plan" under Section 423 of the Internal Revenue Code
of 1986, as amended (the "Code"). The provisions of the Plan shall be
construed in a manner consistent with Section 423 of the Code. The Plan is a
continuation of an employee stock purchase plan previously maintained by
Sierra Pacific Power Company, which corporation became a wholly-owned
subsidiary of Sierra Pacific Resources on May 31, 1984.
2. DEFINITIONS
(a) REGULAR BASE PAY means regular straight time earnings, but
excludes payments for overtime, shift premiums, incentive compensation,
bonuses and other special payments. However, in the case of an Employee paid
on a salary or commission basis, Regular Base Pay will also include an amount
equal to the average of his commissions in his payroll period during the six
(6) months preceding the current Payment Period, as that term is defined in
Paragraph 4.
(b) BOARD means the Board of Directors of Sierra Pacific Resources
(the "Company").
(c) COMMITTEE means the Employee Stock Purchase Plan Committee
appointed by the Board to administer the Plan in accordance with Paragraph 20.
(d) EMPLOYEE means any person (including directors who are also
employees or officers) who is customarily employed for more than 20 hours per
week and more than five (5)
<PAGE>
months in a calendar year by one or more Employers.
(e) EMPLOYER means the Company and each of its Subsidiaries that has
elected, by action of its board of directors, to participate in the Plan and
whose participation in the Plan has been approved by the Board.
(f) OFFERING means each offering of rights to purchase Shares to
eligible Employees pursuant to this Plan.
(g) SUBSIDIARY means any corporation that is a "subsidiary
corporation" of the Company, as that term is defined in Section 424(f) of the
Code.
3. SHARES OF COMMON STOCK
The maximum number of shares of the Common Stock, $1.00 par value,
of the Company (the "Shares") which are available for sale under the Plan
during the term of the Plan includes 200,162 Shares that were available as of
June 14, 1984 when the Plan was originally adopted by the Company as a
continuation of a stock purchase plan previously maintained by Sierra Pacific
Power Company, a wholly-owned Subsidiary of the Company, and 700,000 Shares
made available pursuant to this restated Plan, totaling 900,162 Shares in the
aggregate available for sale under the Plan, subject to adjustment upon
changes in capitalization of the Company as provided in Paragraph 7. Either
authorized, unissued Shares or Shares heretofore or hereafter reacquired by
the Company may be made subject to options under this Plan.
4. ELIGIBILITY
(a) All Employees of the Company, regardless of their position or
rate of pay, may participate in the Plan except Employees who, at the
beginning date of the Payment Period, had not completed six (6) months
service with the Company or a Subsidiary thereof.
(b) Any provision of the Plan to the contrary notwithstanding, no
Employee shall be granted an option to purchase Shares under the Plan
(i) if, immediately after the grant, such Employee would
own stock, and/or hold outstanding options to
purchase stock, possessing 5% or more of the total
combined voting power or value of all classes of
stock of the
<PAGE>
Company or of any Subsidiary; or
(ii) which permits the Employee's rights to purchase stock
under all employee stock purchase plans of the
Company and its Subsidiaries to accrue at a rate
which exceeds $25,000 of the fair market value of the
stock (determined at the time such option is granted)
for each calendar year in which such option is
outstanding at any time.
For purposes of this paragraph, the rules of Section 424(d) of the Code shall
apply in determining the stock ownership of an individual, and stock which an
individual may purchase under outstanding options shall be treated as stock
owned by such individual.
5. PAYMENT PERIODS
The six-month periods, June 1 to November 30 and December 1 to May 31,
shall be the "Payment Periods" during which payroll deductions will be
accumulated under the Plan. Each Payment Period includes all pay days falling
within it; provided, however, that the Payment Period which otherwise would have
commenced December 1, 1991 shall not commence, and no options shall be granted
for such Payment period, until the first day of the calendar month following the
date on which all governmental or other filings made necessary by the amendment
and restatement of this Plan by the Company become effective. The first day of
each Payment Period shall be the "Offering Commencement Date" and the last day
of each Payment Period shall be the "Offering Exercise Date."
6. GRANTING STOCK OPTIONS
(a) Twice each year, on the Offering Commencement Date, the Company
will grant to each eligible Employee who is then a participant in the Plan an
option to purchase on the Offering Exercise Date of such Payment Period at the
"Option Price" hereinafter set forth such number of full Shares reserved for the
purpose of the Plan as his accumulated payroll deductions on the Offering
Exercise Date will pay for at such Option Price; provided and on condition that
such Employee remains eligible to participate in the Plan throughout such
Payment Period.
(b) The "Option Price" per Share for each Payment Period shall be the
lesser of: (1)
<PAGE>
90% of the closing price for such stock as shown on the composite tape on the
Offering Commencement Date, or on the last preceding day such quotations are
available; or (2) 100% of the closing price for such Shares as shown on the
composite tape on the Offering Exercise Date or on the last preceding day such
quotations are available, but in no event will the Option Price be less than the
par value of such Shares.
(c) No offering shall be for longer than twenty-seven (27) months.
7. CHANGES IN CAPITALIZATION; MERGER OR CONSOLIDATION
In the event of an increase or decrease in the number of outstanding
shares of Common Stock of the Company through stock split-ups,
reclassifications, stock dividends, changes in par value and the like, an
appropriate adjustment shall be made in the number of shares and Option Price
per Share provided for under Paragraph 6 of the Plan, either by a proportionate
increase in the number of shares and a proportionate decrease in the Option
Price per Share, or by a proportionate decrease in the number of Shares and a
proportionate increase in the Option Price per Share, as may be required to
enable an eligible Employee who is then a participant in the Plan and by whom an
option is exercised on the last day of any then current Payment Period to
acquire such number of full Shares as his accumulated payroll deductions on such
date will pay for at the adjusted Option Price.
8. EXERCISE OF OPTION
Each eligible Employee who continues to be a participant in the Plan on
the Offering Exercise Date shall be deemed to have exercised his option on such
Offering Exercise Date pursuant to the terms of Paragraph 6(b) of the Plan. In
the event the Option Price is determined pursuant to Paragraph 6(b)(1), a
participant shall be deemed to have purchased from the Company such number of
full Shares reserved for the purpose of the Plan as his accumulated payroll
deductions on such date will pay for at such Option Price.
9. PURCHASE OF STOCK IN OPEN MARKET
<PAGE>
In the event that on the Offering Exercise Date, the Option Price is
calculated pursuant to Paragraph 6(b)(2), then in lieu of issuing to
participants Shares reserved for the purpose of the Plan the Company is
authorized to and will purchase for the account of each participant in the open
market promptly thereafter such number of full Shares as his accumulated payroll
deductions will pay for at such Option Price. The Company will pay the brokerage
commissions on such open market purchases.
10. UNUSED PAYROLL DEDUCTIONS
Only full Shares may be purchased under the Plan. Any balance remaining
in an Employee's accumulated payroll deduction account after exercise of an
Option will be reported to the participant and will be carried forward to the
next Payment Period unless the participant elects to withdraw from the Plan.
11. AUTHORIZATION FOR ENTERING PLAN
(a) An Employee may participate in the Plan effective at the beginning
of the next succeeding Payment Period by filling out, signing and delivering to
the Company Payroll Accounting office an Authorization:
(i) stating the amount to be deducted regularly from his
pay;
(ii) authorizing the purchase of Shares for him in each
Payment Period; and
(iii) specifying the exact name in which Shares purchased
for him is to be issued as provided under Paragraph
13 hereof.
Such Authorization must be received by the Payroll Accounting office at
least ten (10) days before the offering Commencement Date of such next
succeeding Payment Period.
Unless an Employee files a new Authorization or withdraws from the
Plan, his deductions and purchases under the Authorization he has on file under
the Plan will continue as long as the Plan remains in effect.
The Company will accumulate and hold for the Employee's account the
amounts deducted from his pay but shall not be obligated to segregate such
payroll deductions and no
<PAGE>
interest will be paid thereon.
(b) An Employee may authorize payroll deductions in any even dollar
amount up to but not more than 15% of his Regular Base Pay.
(c) Deductions may be increased or decreased only at the beginning of a
Payment Period. A new Authorization will be required and must be received by the
Payroll Accounting office at least ten (10) days before the beginning date of
the Payment Period.
12. WITHDRAWAL FROM THE PLAN
An Employee may withdraw from the Plan, in whole but not in part, at
any time prior to the Offering Exercise Date by forwarding a Withdrawal Notice
to the Committee, in which event the Committee will promptly refund the entire
balance of his deductions not theretofore used by him to purchase stock under
the Plan, without interest, and no further payroll deductions will be made from
such Employee's Regular Base Pay.
An Employee who withdraws from the Plan is like an employee who has
never entered the Plan. To re-enter, he must file a new Authorization which
cannot, however, become effective before the beginning of the next Payment
Period following his filing such Authorization. However, an officer or director
of the Company or any Subsidiary who is subject to Section 16(b) of the
Securities Exchange Act of 1934 (the "Act") and who withdraws from the Plan
pursuant to this Paragraph 12, may not participate in the Plan for at least six
months from the date of such withdrawal.
13. ISSUANCE OF STOCK CERTIFICATES
Certificates for Shares acquired pursuant to the Plan shall be issued
to participants and delivered as soon as practicable after such issue. However,
for the Payment Period ended November 30, 1991, no stock will be issued to
participants until all governmental and other filings made necessary by the
adoption of this amendment and restatement of the Plan by Sierra Pacific
Resources shall have become effective.
Stock purchased under the Plan will be issued only in the name of the
Employee, or if his
<PAGE>
Authorization so specified, in the name of the Employee and another person of
legal age as joint tenants.
14. TRANSFER OR ASSIGNMENT OF EMPLOYEE'S RIGHTS
An Employee's rights under the Plan and the payroll deductions credited
to him belong to him alone and may not be pledged, transferred or assigned to or
availed of by any other person, other than by will or the laws of descent and
distribution, or a designation of beneficiary as provided in Paragraph 22 of the
Plan. Any attempted assignment, transfer, pledge, or other disposition thereof
shall be without effect, except that the Company or any Subsidiary thereof may
treat such act as an election to withdraw from the Plan by such Employee in
accordance with Paragraph 12.
15. TERMINATION OF EMPLOYEE'S RIGHTS
An Employee's rights under the Plan will terminate when he ceases to be
an Employee because of retirement, resignation, layoff, discharge, death, or for
any other reason. A Withdrawal Notice will be considered as having been received
from the Employee on the day his employment ceases, and all payroll deductions
not used to purchase stock will be refunded to the participant.
If an Employee's payroll deductions are interrupted by any legal
process, a Withdrawal Notice will be considered as having been received from him
on the day the interruption occurs.
Upon termination of the participant's employment because of death, the
participant's beneficiary as provided herein shall have the right to elect, by
written notice given to the Committee or other person designated by the
Committee prior to the expiration of the period of thirty (30) days commencing
with the date of the death of the participant, either (i) to withdraw all of the
payroll deductions credited to the participant's account under the Plan, without
interest, or (ii) to exercise the participant's option for the purchase of
Shares on the Offering Exercise Date next following the date of the
participant's death for the purchase of the number of full Shares which the
accumulated payroll deductions in the participant's account at the date of the
participant's death will purchase at the applicable option price, and any excess
in such account (in
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lieu of fractional Shares) will be returned to said beneficiary, without
interest. In the event that no such written notice of election shall be duly
received by the Committee or person designated by the Committee, the beneficiary
shall automatically be deemed to have elected to withdraw the payroll deductions
credited to the participant's account at the date of the participant's death and
the same will be paid promptly to said beneficiary, without interest.
16. TERMINATION AND AMENDMENTS TO PLAN
The Plan may be terminated at any time by the Company's Board of
Directors, without notice. The Plan will terminate in any case when all or
substantially all of the unissued shares of stock reserved for the purposes of
the Plan have been purchased. If at any time Shares of stock reserved for the
purposes of the Plan remain available for purchase but not in sufficient number
to satisfy all then unfilled purchase requirements, the available shares shall
be apportioned among participants in proportion to their options and the Plan
shall terminate. Upon such termination or any other termination of the Plan, all
payroll deductions not used to purchase stock will be refunded to the
participants, without interest.
The Board of Directors also reserves the right to amend the Plan from
time to time, in any respect, in order to meet changes in legal requirements of
for any other reason. However, no amendment to the Plan shall, without the
approval of the shareholders of the Company, increase the total number of Shares
which may be offered under the Plan, materially alter the requirement for
participation in the Plan, or materially increase the benefits accruing to
participants in the Plan. In no event may the Plan be amended more frequently
than once each six (6) months, other than to comport with changes in the Code or
such other applicable law.
17. LIMITATIONS ON SALE OF SHARES PURCHASED UNDER THE PLAN
The Plan is intended to provide an opportunity to purchase Shares for
investment and not for resale. The Company does not, however, intend to restrict
or influence any Employee, other than Employees who are subject to Section 16(b)
of the Act in the conduct of his own business affairs. However, Employees of the
Company or any Subsidiary who are subject to Section 16(b) of the Act may not
dispose of Shares acquired pursuant to the Plan within six months of
<PAGE>
the date of acquisition thereof. Notwithstanding the foregoing, an Employee not
subject to Section 16(b) of the Act may sell Shares purchased under the Plan at
any time; provided, however, that because of certain federal tax requirements,
each Employee will agree by entering the Plan, to promptly give the Company
notice of any such Shares disposed of within eighteen months of its purchase
showing the number of such Shares disposed of and the date purchased by him. An
Employee who is subject to Section 16(b) of the Act may be liable for the
short-swing profit tax associated with the sale of Shares acquired under the
Plan if transacted within six months of such acquisition. Each Employee shall
agree by participation in the Plan that all restrictions on transfer of Shares
acquired pursuant to the Plan may be indicated on certificates issued to
Employees to whom such restrictions apply.
18. COMPANY'S CONTRIBUTION TO PLAN
The Company's contribution toward the Plan will consist of making its
Shares reserved for the purposes of the Plan available for the purchase by
Employees at less than the market price and of bearing all costs of
administering and carrying out the Plan including brokerage commissions on stock
purchased for participants in the open market.
19. CERTAIN RESERVATIONS
It is intended that the Plan comply with applicable requirements of
pertinent federal and other laws, and that it conform with limitations imposed
by the Company's stockholders.
20. ADMINISTRATION OF THE PLAN
The Plan shall be administered by the Employee Stock Purchase Plan
Committee (the "Committee") appointed by the Board consisting of at least three
members of which two may be members of the Board. The interpretation and
construction of any provisions of the Plan and the adoption of rules and
regulations for administering the Plan shall be made by the Committee, subject,
however, at all times to the final jurisdiction which shall rest in the Board.
Determinations made by the Committee and approved by the Board with respect to
any matter or provision contained in the Plan shall be final, conclusive and
binding upon the Company, each Subsidiary, and upon all participants, their
heirs or legal representatives. Any rule or regulation
<PAGE>
adopted by the Committee shall remain in full force and effect unless and until
altered, amended, or repealed by the Board.
21. OPTIONEES NOT STOCKHOLDERS
Neither the granting of an option to an Employee nor the deductions
from his pay shall constitute such Employee a stockholder of the shares covered
by an option until such Shares have been purchased by such Employee.
22. DESIGNATION OF BENEFICIARY
A participant may file a written designation of a beneficiary who is to
receive any cash held in his payroll deduction account in the case of such
participant's death. Such designation of beneficiary may be changed by a
participant at any time by written notice to the Committee. Upon the death of a
participant and upon receipt by the Committee of proof of the identity and
existence at the time of the participant's death of a beneficiary validly
designated under the Plan, the Company shall deliver either such cash allocable
to a participant as of his date of death or Shares, pursuant to Paragraph 15, to
his designated beneficiary. In the event of the death of a participant and in
the absence of a beneficiary validly designated under the Plan who is living at
the time of such participant's death, the Company shall deliver such cash to the
spouse of such participant, or, in the event the participant was not married at
the time of his death, then to his estate. No beneficiary shall, prior to the
death of the participant by whom the beneficiary has been designated, acquire
any interest in the cash credited to the participant under the Plan.
23. NOTICES
All notices or other communications by a participant to the Company under or in
connection with the Plan shall be deemed to have been duly given when received
by the Committee.
24. APPROVAL OF STOCKHOLDERS
The Plan became effective as of the original date it was adopted by the
Board, and was
<PAGE>
approved by the stockholders within twelve (12) months after said original
adoption date and has been restated, effective as of the date such restatement
was adopted by the Board, subject to the approval of the stockholders of the
Company at their next meeting within twelve (12) months after said date of
adoption. Should an Offering Exercise Date occur before such stockholder
approval is obtained, the Committee shall take such action(s) as it deems
necessary to comply with applicable law or to preserve desired treatment
thereunder.
