Exhibit 10.66
EMPLOYEE RETENTION AGREEMENT
FOR MIRANT SERVICES LLC
This Employee Retention Agreement ("Agreement") is made and entered
into by and between Mirant Services LLC (the "Company") and Xxxx X. Xxxxxx (the
"Employee") on July 9, to be effective as of July 9, 2002.
W I T N E S S E T H:
WHEREAS, the Employee is an employee of the Company or another Mirant
Subsidiary; and
WHEREAS, the Company wishes to continue to encourage the Employee to
remain with the Company; and
WHEREAS, Company desires to provide Employee with additional
compensation for services Employee has or will provide for the Company.
NOW, THEREFORE, in consideration of the premises, and the agreements
of the parties set forth in this Agreement, and other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby agree as follows:
1. Definitions. For purposes of this Agreement, the following terms shall
have the following meanings:
(a) "Award Amounts" shall mean the payments made to the Employee
pursuant to Section 2 of this Agreement.
(b) "Change in Control" shall have the meaning of such term as set
forth in the Change in Control Benefit Plan Determination Policy.
(c) "Change in Control Benefit Plan Determination Policy" shall mean
the Amended and Restated Mirant Corporation Change in Control
Benefit Plan Determination Policy, effective as of April 2, 2001,
as amended and restated as of February 19, 2002.
(d) "Company" shall mean Mirant Services LLC, its successors and
assigns.
(e) "Disability" shall mean you are limited from performing the
material and substantial duties of your regular occupation due to
your sickness or injury; and you have a 20% or more loss in your
indexed monthly earnings due to the same sickness or injury. The
company may require such medical or other evidence, as it deems
necessary to judge the nature and permanency of the Employee's
condition.
(f) "Effective Date" shall mean the date of execution of this
Agreement, unless otherwise provided herein.
(h) "Good Reason" shall have the meaning of such term as set forth in
the Change in Control Benefit Plan Determination Policy, except
that references in such definition to the date of a Change in
Control, the date immediately prior to a Change in Control, or
the 12-month period prior to a Change in Control (or words of
similar import) shall instead refer to the Effective Date of this
Agreement. For purposes of this Agreement, Good Reason can occur
in the absence of a Change in Control. (i) "Mirant" shall mean
Mirant Corporation, a Delaware corporation, its successors and
assigns.
(k) "Mirant Subsidiary" shall have the meaning of such term as set
forth in the Change in Control Benefit Plan Determination Policy.
(m) "Termination for Cause" or "Cause" shall have the meanings of
such terms as set forth in the Change in Control Benefit Plan
Determination Policy.
(n) "Vesting Date" shall mean the earliest of (i) May 1, 2003, (ii)
the occurrence of a Change in Control, or (iii) the termination
of Employee's employment with the Company or another Mirant
Subsidiary due to the Employee's death, Disability or termination
by the employer without Cause.
2. Payment of Award Amounts. The Company will pay the Employee an amount
of cash - each payment being referred to as an "AwardAmount" and the
payments collectively being referred to as the "Award Amounts"--equal
to:
(a) Award in the amount of $500,000 in cash, on the earliest of (i)
July 9, 2002, (ii) the occurrence of a Change in Control, or
(iii) the termination of Employee's employment with the Company
or another Mirant Subsidiary due to the Employee's death,
Disability, termination by the employer without Cause or
resignation by the Employee for Good Reason; and
(b) Award in the amount of $500,000 in cash, on the earliest of (i)
August 15, 2002, (ii) the occurrence of a Change in Control, or
(iii) the termination of Employee's employment with the Company
or another Mirant Subsidiary due to the Employee's death,
Disability, termination by the employer without Cause or
resignation by the Employee for Good Reason; and
c) Award in the amount of $250,000 in cash, on the earliest of (i)
November 15, 2002, (ii) the occurrence of a Change in Control, or
(iii) the termination of Employee's employment with the Company
or another Mirant Subsidiary due to the Employee's death,
Disability, termination by the employer without Cause or
resignation by the Employee for Good Reason; and
(d) Award in the amount of $250,000 in cash, on the earliest of (i)
February 15, 2003, (ii) the occurrence of a Change in Control, or
(iii) the termination of Employee's employment with the Company
or another Mirant Subsidiary due to the Employee's death,
Disability, termination by the employer without Cause or
resignation by the Employee for Good Reason; and
To receive an Award Amount, Employee must have remained as an employee of
the Company or Mirant or a Mirant Subsidiary up to the date preceding the
date on which the Award Amount was due.
3. Resignation by Employee. In the event of the Employee's voluntary
resignation for any reason other than Good Reason prior to
February 15, 2004, the Employee must return to the Company 50% of
all after-tax amounts received pursuant to Sections 2(a) through
(d) hereof. The provisions of this Section 3 shall not apply in
the event of the occurrence of a Change in Control, or the
termination of Employee's employment with the Company or another
Mirant Subsidiary due to the Employee's death, Disability, or the
termination by the employer without Cause or resignation by the
Employee for Good Reason.
4. Supplemental Pension Payment.
(a) Nature of Payment. The Employee and/or the Employee's surviving
spouse, if applicable, shall receive the payments described in
this Section 4 if (i) the Employee remains employed with the
Company or Mirant or a Mirant Subsidiary until May 1, 2005 (the
"Service Requirement"), and upon the Employee's termination of
employment enters into the attached release, or (ii) if a Change
in Control occurs, or (iii) if the Employee's employment is
terminated on account of the death or Disability of the Employee
or is terminated by the Company without Cause, or (iv) if the
Employee resigns for Good Reason. For the purpose of computing
the monthly amounts payable to the Employee and/or the Employee's
surviving spouse under this Section 4, no limitation on benefits
imposed by the Internal Revenue Code as it now exists or is
hereafter amended or any other limiting legislation shall be
taken into account. In the event of the occurrence of any of the
foregoing, the Company shall pay Employee and/or the Employee's
surviving spouse, if applicable, an amount equal to the
difference between:
(i) The amount that would have been payable to him/her under the
Mirant Services Pension Plan, the Pension Benefit portion of
the Mirant Services Supplemental Benefit Plan, and the
Mirant Services Supplemental Executive Retirement Plan (the
"Pension Plans"), as in effect at the time of each payment,
if the Employee's period of Accredited Service and Age (as
defined in the Pension Plans) under the Pension Plans each
included an additional five (5) years, and
(ii) The amount payable to him/her under the Pension Plans
without such additional Accredited Service and Age.
The Employee covenants and agrees that the consideration set forth in
this Section 4(a) shall constitute good and complete consideration for
the release provided by Employee to the Company.
(b) Commencement and Form of Payments. The benefits provided in
accordance with Section 4(a) above calculated by reference to the
Pension Plans shall be paid in the same manner and commence at
the same time as the Employee's benefits and/or the surviving
spouse's benefits under the Pension Plans. Notwithstanding the
preceding sentence, the Employee and/or the Employee's surviving
spouse may become eligible for payment of benefits under Section
4(a) above up to five (5) years earlier than pension benefits are
available under the Pension Plans. If payment of benefits
provided under Section 4(a) commences prior to the earliest
availability of benefits under the Pension Plans, then the full
amount of pension benefits will be provided under Section 4(a)
until payments commence under the Pension Plans. After payments
commence under the Pension Plans Section 4(a) will only provide
the difference in pension benefits described therein. If the form
of payment subsequently elected under the Pension Plans by the
Employee or the Employee's surviving spouse differs from the
initial form of payment elected under Section 4(a), then the
benefit difference will be computed as if the initial form of
payment had also been elected under the Pension Plans. The
Employee or his surviving spouse shall not, under any
circumstances, have any option or right to require payments
hereunder otherwise than in accordance with the terms hereof.
5. Non-Disclosure, Non-Competition And Non-Solicitation Provisions.
(a) Definitions. For purposes of this Section 5, the following terms
shall have the following meanings:
(i) "Entity" shall mean any business, individual, partnership,
joint venture, agency, governmental subdivision,
association, firm, corporation or other entity.
(ii) "Affiliate" shall mean the following Entities: (A) any
Entity which owns an Interest (as defined below) in Company
either directly or indirectly through any other Entity, (B)
any Entity an Interest in which is owned directly or
indirectly by any Entity which owns directly or indirectly
an Interest in Company, (C) any Entity in which Company owns
an Interest either directly or indirectly through any other
Entity, or (D) any Entity which owns an Interest either
directly or indirectly in an Entity an Interest in which is
owned either directly or indirectly by Company. For purposes
of this Agreement the term "Interest" shall include any
equity interest in an Entity in an amount equal to or
greater than 10% of the Entity's total outstanding equity
interests.
(iii)"Confidential Information" shall mean proprietary and
confidential data or information other than Trade Secrets
(as defined below), which is valuable to, and related to the
business of, the Company or its Affiliates, the details of
which are generally unknown to the public or to Competitors
(as defined below), including, without limitation,
information regarding Company's employees, business
strategies, models and systems, customers, suppliers,
partners and affiliates, gained by Employee as a result of
his affiliation with Company or its Affiliates, and other
items that Company or its Affiliates may from time to time
xxxx or otherwise identify as confidential.
(iv) "Trade Secrets" shall mean information of or related to
Company, its Affiliates or Third Parties which (i) derives
economic value, actual or potential, from not being
generally known to, and not being readily ascertainable by
proper means by, other persons who can obtain economic value
from its disclosure or use; and (ii) is the subject of
efforts that are reasonable under the circumstances to
maintain its secrecy; it being agreed that such information
includes, without limitation, technical and non-technical
data, a formula, a pattern, a compilation, a program, a
device, a method, a technique, a drawing, a process,
financial data, financial plans, product plans or a list of
actual or potential customers or suppliers.
(v) "Intellectual Property" shall mean all work product,
property, data, documentation, "know-how", concepts or
plans, inventions, discovery, compositions, innovations,
computer programs, improvements, techniques, processes,
designs, article of manufacture or information of any kind,
or any new or useful improvements of any of the foregoing
and any Trade Secrets, patents, copyrights, Confidential
Information, mask work, trademark or service xxxx, relating
in any way to Company or its Affiliates and its or their
business prepared, conceived, revised, discovered,
developed, or created by Employee for Company or its
Affiliates or by using Company's or its Affiliates' time,
personnel, facilities, or material.
(vi) "Area" shall mean the geographical area as defined as the
United States and Canada. Should Company and Employee agree
to additional responsibilities outside of the defined
geographical area, this Agreement shall be expanded by
written amendment to include those additional areas of
responsibility.
(vii)"Competitor" shall mean any Entity engaged, wholly or
partly, in the energy trading and marketing business of
Company including, without limitation, those Competitors
listed on Exhibit A.
(viii) "Competitive Position" shall mean: (A) the direct or
indirect ownership or control of all or any portion of a
Competitor, other than the ownership of less than 2% of a
Competitor's stock which is traded on a national exchange;
or (B) any employment or independent contractor arrangement
with any Competitor whereby Employee will serve such
Competitor in the same or similar functional capacity as
that which he performs for Company pursuant to the terms of
this Agreement.
(b) Nondisclosure: Ownership of Proprietary Property.
(i) Nondisclosure. In recognition of Company's need to protect
its legitimate business interests, Employee hereby
acknowledges that he has been and will continue to be given
access to valuable Trade Secrets and Confidential
Information; and Employee hereby covenants and agrees that
he will use the Trade Secrets and Confidential Information
for Company's business purposes only, and that he will not
for any reason, in any fashion, form or manner, other than
as instructed by a duly authorized representative of
Company, copy, disclose, disseminate, communicate, transfer
or otherwise convey to any Entity any item: (a) which is a
Trade Secret, for so long as such item remains a trade
secret under applicable law; or (b) which is Confidential
Information, other than Trade Secrets, during the term of
this Agreement and for a period of two (2) years thereafter.
(ii) Notification of Unauthorized Disclosure. Employee shall
exercise his best efforts to ensure the continued
confidentiality of all Trade Secrets and Confidential
Information known by, disclosed or made available to
Employee. Employee shall immediately notify Company of any
unauthorized disclosure or use of any Trade Secrets or
Confidential Information of which Employee becomes aware.
Employee shall assist Company, to the extent necessary, in
the procurement or protection of Company's or its
Affiliates' rights to or in any Intellectual Property, Trade
Secrets or Confidential Information and, upon Company's
request, shall assist, to the extent necessary, in the
procurement or protection of any Third Party's rights to or
in any Intellectual Property, Trade Secrets or Confidential
Information.
(iii)Ownership. To the greatest extent possible, any and all
Intellectual Property shall be deemed to be "work made for
hire" (as defined in the Copyright Act, 17 U.S.C(a) xx.xx.
101 et seq.), and Employee hereby unconditionally and
irrevocably transfers and assigns to Company or its
Affiliates all rights, title and interest Employee currently
has or in the future may have by operation of law or
otherwise in or to any Intellectual Property, including,
without limitation, all patents, copyrights, trademarks,
service marks and other Intellectual Property rights and
agrees that Company or its Affiliates shall have the
exclusive world-wide ownership of such Intellectual
Property, and that no Intellectual Property shall be treated
as or deemed to be a "joint work" (as defined by the
Copyright Act) of Employee and Company, its Affiliates or
otherwise. Employee agrees to execute and deliver to Company
or its Affiliates any transfers, assignments, documents or
other instruments which Company or its Affiliates may deem
necessary or appropriate to vest complete title and
ownership of any Intellectual Property, and all rights
therein, exclusively in Company or its Affiliates, as the
case may be.
(iv) Return of Materials. Immediately upon termination of this
Agreement, or at any point prior to or after that time upon
the specific request of Company, Employee shall return to
Company all written or descriptive materials of any kind
belonging to Company or its Affiliates, including, without
limitation, any Intellectual Property, Confidential
Information and Trade Secrets, in Employee's possession.
(v) Public Statements. Company shall issue all public statements
concerning the work hereunder;Employee shall not issue any
public statements concerning such work without prior
authorization from Company.
(c) Non-Competition. Employee and Company expressly covenant and
agree that the territorial, time and other restrictions contained
in this Agreement constitute the most reasonable and equitable
restrictions possible to protect the business interests of
Company given: (a) the business of Company; (b) the competitive
nature of Company's industry; and (c) that Employee's skills are
such that he could easily find alternative, commensurate
employment or consulting work in his field which would not
violate any of the provisions of this Agreement. Therefore,
Employee expressly covenants and agrees that during the term of
his employment by Company, and for a period of one (1) year
thereafter (such additional one (1) year period to be referred to
as the "Non-compete Period"), he shall not, directly or
indirectly, accept or enter into a Competitive Position within
the Area.
(d) Non-solicitation of Customers and Employees. Employee covenants
and agrees that during the term of his employment by Company, and
for a period of one (1) year thereafter, he shall not, either
directly or indirectly, for himself or in conjunction with or on
behalf of any Entity: (a) solicit, divert or appropriate or
attempt to solicit, divert or appropriate any customer or
actively sought prospective customer of Company whom Employee has
solicited or has otherwise contacted for solicitation on behalf
of Company; or (b) solicit, divert, or hire away or attempt to
solicit, divert or hire away any person employed by Company
(whether or not such person is a full-time or temporary employee,
whether or not such employment is pursuant to a written
agreement, and whether or not such employment is for a determined
period or at-will) during any time Employee was employed by
Company pursuant to this Agreement
(e) Reformation of Scope. If any of the provisions of this Section 5
are found to be unreasonably broad, oppressive or unenforceable
in any action, suit or proceeding before any federal or state
court, such court (i) shall narrow the non-compete Period or the
Area or shall otherwise endeavor to reform the scope of such
agreements in order to ensure that the application thereof is not
unreasonably broad, oppressive or unenforceable and (ii) to the
fullest extent permitted by law, shall enforce such agreements as
so reformed.
(f) Rights and Remedies upon Breach. In the event the Employee
breaches, or threatens to commit a breach of, any of the
provisions of the restrictive covenants in this Section 5, the
Company shall have the following rights and remedies, which shall
be independent of any others and severally enforceable, and shall
be in addition to, and not in lieu of, any other rights and
remedies available to the Company at law or in equity:
(i) the right and remedy to enjoin, preliminarily and permanently,
the Employee from violating or threatening to violate the
restrictive covenants and to have the restrictive covenants
specifically enforced by any court of competent jurisdiction, it
being agreed that any breach or threatened breach of the
restrictive covenants would cause irreparable injury to the
Company and that money damages would not provide an adequate
remedy to the Company;
(g) Enforcement of Non-Competition Clause. In the event the Company
chooses, in its sole discretion, to enforce the non-competition
covenants under Section 5(c) hereof, the Company shall pay to
Employee in a lump sum the amount determined by taking the total
of (i) his base salary as in effect at the time of termination
and (ii) his average incentive bonus (determined by taking the
average of the previous two annual incentive bonuses received by
Employee), and dividing such total by twelve and multiplying by
the months remaining in the non-competition period.
Notwithstanding the foregoing, if the Company, in its sole
discretion, notifies Employee in writing of his release from the
non-compete obligations under Section 5(c), or if Employee is
otherwise in breach of any provision of this Agreement, including
but not limited to Section 5 hereof, the Company's obligation to
make any payment under this Section 5(g) shall immediately
terminate and Employee shall repay any amount previously paid
under this Section 5(g). Any notice of the release from the
non-compete obligations must occur within 10 days of termination.
6. Confidentiality and Legal Process. The Employee represents and agrees
that he will keep the terms, amount and fact of this Agreement
confidential and that he will not hereafter disclose any information
concerning this Agreement to anyone other than his personal agents,
including, but not limited to, any past, present, or prospective
employee or applicant for employment with the Company or any Mirant
Subsidiary. Notwithstanding the foregoing, nothing in this Agreement
is intended to prohibit the Employee from performing any duty or
obligation that shall arise as a matter of law. Specifically, the
Employee shall continue to be under a duty to respond truthfully to
matters of law and shall continue to be under a duty to respond
truthfully to any legal and valid subpoena or other legal process.
This Agreement is not intended in any way to proscribe the Employee's
right and ability to provide information to any federal, state or
local government in the lawful exercise of such government's
governmental functions.
7. Assignability. Neither the Employee, his estate, his beneficiaries,
nor his legal representative shall have any rights to commute, sell,
assign, transfer or otherwise convey the right to receive any payments
hereunder, which payments and the rights thereto are expressly
declared to be nonassignable and nontransferable. Any attempt to
assign or transfer the right to payments of this Agreement shall be
void and have no effect.
8. Unsecured General Creditor. Unless the Company shall in its discretion
determine otherwise, the benefits payable to the Employee under this
Agreement shall not be funded in any manner and shall be paid by the
Company out of its general assets, which assets are subject to the
claims of the Company's creditors.
9. Guarantee of Mirant. If the Company fails or refuses to make payments
under this Agreement, the Employee shall have the right to obtain
payment by Mirant under the terms of the "Guarantee Agreement
Concerning Mirant Services LLC Compensation and Benefit Arrangements"
entered into by the Company and Mirant. The Employee's right to
payment is not increased as a result of this Guarantee. The Employee
has the same right to payment from Mirant as from the Company. Any
demand to enforce this guarantee should be made in writing and should
reasonably and briefly specify the manner and the amount the Company
has failed to pay.
10. Amendment; Modification; Termination. Except as otherwise provided
herein, this Agreement may be amended, modified, or terminated only by
a writing executed by the parties hereto.
11. Severability. The un-enforceability or invalidity of any particular
provision of this Agreement shall not affect its other provisions, and
to the extent necessary to give such other provisions effect, they
shall be deemed severable.
12. Waiver of Breach; Specific Performance. The waiver of a breach of any
provision of this Agreement shall not operate or be construed as a
waiver of any other breach. Each of the parties to this Agreement will
be entitled to enforce its or his rights under this Agreement,
specifically, to recover damages by reason of any breach of any
provision of this Agreement and to exercise all other rights existing
in its or his favor. The parties hereto agree and acknowledge that
money damages may not be an adequate remedy for any breach of the
provisions of this Agreement and that any party may in its or his sole
discretion apply to any court of law or equity of competent
jurisdiction for specific performance or injunctive relief in order to
enforce or prevent any violations of the provisions of this Agreement.
13. No Effect On Other Arrangements. It is expressly understood and agreed
that the payments made in accordance with this Agreement are in
addition to any other benefits or compensation to which the Employee
may be entitled or for which he may be eligible, whether funded or
unfunded, by reason of his employment with the Company.
14. Tax Withholding. There shall be deducted from each payment under this
Agreement the amount of any tax required by any governmental authority
to be withheld and paid over by the Company to such governmental
authority for the account of the Employee.
15. Compensation. Any compensation paid to Employee under this Agreement
shall not be considered "compensation," as the term is defined in the
Mirant Services LLC Employee Savings Plan or the Mirant Services
Pension Plan. Any award amounts paid to the Employee shall not be
considered wages, salaries or compensation under any other employee
benefit plan.
16. No Guarantee of Employment. No provision of this Agreement shall be
construed to affect in any manner the existing rights of the Company
to suspend, terminate, alter or modify, whether or not for Cause, the
employment relationship of the Employee and the Company.
17. Transfer of Employment to Mirant or another Mirant Subsidiary. In the
event that the Employee's employment by the Company is terminated
prior to the Vesting Date and the Employee shall become immediately
re-employed by Mirant or another Mirant Subsidiary, the Company shall
assign this Agreement to Mirant or such Mirant Subsidiary; and Mirant
or such Mirant Subsidiary shall accept such assignment or cause such
Mirant Subsidiary to accept such assignment. Notwithstanding any such
assignment, or any acceptance of any such assignment, payment of all
amounts due Employee under this Agreement shall continue to be
guaranteed by Mirant pursuant to the Guarantee Agreement Concerning
Mirant Services LLC Compensation and Benefit Arrangements.
18. Governing Law. This Agreement, and all rights under it, shall be
governed by and construed in accordance with the laws of the State of
Georgia.
IN WITNESS WHEREOF, this Agreement has been executed by the parties
first listed above on the date first listed above, to be effective as of
the Effective Date.
MIRANT SERVICES LLC:
By: /s/ --------------------------------------------------
Attest:
By: /s/ --------------------------------
EMPLOYEE:
___/s/_____________________________ Xxxx X. Xxxxxx
WAIVER AND RELEASE AGREEMENT
This Waiver and Release Agreement (the "Waiver and Release") is
entered into by and among Mirant Corporation ("Mirant"), Mirant Services,
LLC (the "Company") and Xxxx Xxxxxx ("Executive") this 3rd day of July,
2002.
1. General Waiver and Release: For and in consideration of the
agreement of Mirant and the Company to provide Executive the severance
benefits described in that certain Retention Agreement, dated as of July 9,
2002, among Executive, Mirant and the Company (the "Agreement"), Executive,
with the intention of binding himself and all of his heirs, executors,
administrators and assigns, does hereby release, remise, acquit and forever
discharge Mirant and the Company, and all of their respective past and
present officers, directors, stockholders, employees, agents, parent
corporations, predecessors, subsidiaries, affiliates, estates, successors,
assigns and attorneys (hereinafter collectively referred to as "Released
Parties") from any and all claims, charges, actions, causes of action, sums
of money due, suits, debts, covenants, contracts, agreements, rights,
damages, promises, demands or liabilities (hereinafter collectively
referred to as "Claims") whatsoever, in law or in equity, whether known or
unknown, suspected or unsuspected, which Executive, individually or as a
member of any class, now has, owns or holds or has at any time heretofore
ever had, owned or held against the Released Parties including, but not by
way of limitation, Claims arising out of or in any way connected with
Executive's employment with the Company or any of the Released Parties or
the termination of any such employment relationship, including, but not by
way of limitation, Claims pursuant to federal, state or local statute,
regulation, ordinance or common-law for (i) employment discrimination; (ii)
wrongful discharge; (iii) breach of contract; (iv) tort actions of any
type, including those for intentional or negligent infliction of emotional
harm; and (v) unpaid benefits, wages, compensation, commissions, bonuses or
incentive payments of any type, except as follows:
A. those obligations of the Company and its affiliates under the
Agreement, pursuant to which this Waiver and Release is being executed and
delivered; and
B. claims, if any, for Executive's accrued or vested benefits under
the retirement plans, savings plans, investment plans and employee welfare
benefit plans, if any, of the Released Parties (within the meaning of
Section 3(1) of the Employee Retirement Income Security Act of 1974
("ERISA")), as amended; provided, however, that nothing herein is intended
to or shall be construed to require the Released Parties to institute or
continue in effect any particular plan or benefit sponsored by the Released
Parties and the Company and all other Released Parties hereby reserve the
right to amend or terminate any such plan or benefit at any time; and
C. any rights to indemnification or advancement of expenses to which
Executive may otherwise be entitled pursuant to the Articles of
Incorporation or Bylaws of any of the Released Parties, or by contract or
applicable law, as a result of Executive's service as an officer or
director of any of the Released Parties.
Executive further understands and agrees that he has knowingly
relinquished, waived and forever released any and all remedies arising
out of the aforesaid employment relationship or the termination
thereof, including, without limitation, claims for backpay, front pay,
liquidated damages, compensatory damages, general damages, special
damages, punitive damages, exemplary damages, costs, expenses and
attorneys' fees.
2. Waiver and Release of ADEA Claims: Without limiting the generality
of the foregoing, and also for and in consideration of the Company's
agreement to provide Executive Severance Benefits described in Article 3 of
the Agreement, Executive specifically acknowledges and agrees that he does
hereby knowingly and voluntarily release Mirant, the Company and all other
Released Parties from any and all claims arising under the Age
Discrimination in Employment Act, 29 U.S.C. ss. 621, et seq. ("ADEA"),
which Executive ever had or now has from the beginning of time up to the
date this Waiver and Release is executed, including, but not by way of
limitation, those ADEA Claims which are in any way connected with any
employment relationship or the termination of any employment relationship
which existed between the Company or any other Released Parties and
Executive. Executive also acknowledges that he has been provided with a
notice, as required by the Older Workers Benefit Protection Act of 1990,
that contains (i) information about the individuals covered under the
Agreement, (ii) the eligibility factors for participation in the Agreement,
(iii) the time limits applicable to the Agreement, (iv) the job titles and
ages of the employees designated to participate in the Agreement, (v) and
the ages of the employees in the same job classification who have not been
designated to participate in the Agreement. (See Attachment 1). Executive
further acknowledges and agrees that he has been advised to consult with an
attorney prior to executing this Waiver and Release and that he has been
given forty-five (45) days to consider this Waiver and Release prior to its
execution. Executive agrees that in the event that he executes this Waiver
and Release prior to the expiration of the forty-five (45) day period, he
shall waive the balance of said period. Executive also understands that he
may revoke this Waiver and Release of ADEA Claims at any time within seven
(7) days following its execution and that, if Executive revokes this Waiver
and Release of ADEA Claims within such seven (7) day period, it shall not
be effective or enforceable and he will not receive the above-described
consideration or any payments provided for in the Agreement that have not
been paid.
3. Covenant Not to Xxx: Executive acknowledges and agrees that this
Waiver and Release may not be revoked at any time after the expiration of
the seven (7) day revocation period and that he will not institute any
suit, action, or proceeding, whether at law or equity, challenging the
enforceability of this Waiver and Release. Should Executive ever attempt to
challenge the terms of this Waiver and Release, attempt to obtain an order
declaring this Waiver and Release to be null and void, or institute
litigation against any of the Released Parties based upon a Claim other
than an ADEA Claim which is covered by the terms of this Waiver and
Release, Executive will as a condition precedent to such action repay all
monies paid to him under the terms of this Waiver and Release. Furthermore,
if Executive does not prevail in an action to challenge this Waiver and
Release, to obtain an order declaring this Waiver and Release to be null
and void, or in any action against any of the Released Parties based upon a
Claim other than an ADEA Claim which is covered by the Waiver and Release
set forth herein, Executive shall pay to the Company and/or the appropriate
Released Parties all their costs and attorneys' fees incurred in their
defense of Executive's action.
Provided, however, that it is understood and agreed by the
parties that Executive shall not be required to repay the monies paid
to him under the terms of this Waiver and Release or pay the Company
and/or the appropriate Released Parties all their costs and attorneys'
fees incurred in their defense of Executive's action (except those
attorneys' fees or costs specifically authorized under federal law) in
the event that Executive seeks to challenge his Waiver and Release of
Claims under the ADEA.
4. Denial of Liability: Executive acknowledges and agrees that neither
the payment of Severance Benefits under the Agreement nor this Waiver and
Release is to be construed in any way as an admission of any liability
whatsoever by Mirant, the Company or any of the other Released Parties, by
whom liability is expressly denied.
5. Agreement Not to Seek Further Relief: Executive acknowledges and
agrees that he has not, with respect to any transaction or state of facts
existing prior to the date of execution of this Waiver and Release, filed
any complaints, charges or lawsuits against any of the Released Parties
with any governmental agency or any court or tribunal, and that he will not
do so at any time hereafter. Executive further acknowledges and agrees that
he hereby waives any right to accept any relief or recovery, including
costs and attorneys' fees, that may arise from any charge or complaint
before any federal, state or local court or administrative agency against
the Released Parties.
6. Company Property: Executive agrees that he will not retain or
destroy, and will immediately return to the Company, any and all property
of the Company in his possession or subject to his control, including, but
not limited to, keys, credit and identification cards, personal items or
equipment provided for his use, customer files and information, all other
files and documents relating to the Company and its business, together with
all written or recorded materials, documents, computer disks, plans,
records or notes or other papers belonging to the Company. Executive
further agrees not to make, distribute or retain copies of any such
information or property.
7. Confidentiality Agreement: Executive acknowledges that the terms of
this Waiver and Release must be kept confidential. Accordingly, Executive
agrees not to disclose or publish to any person or entity, except as
required by law or as necessary to prepare tax returns, the terms and
conditions or sums being paid in connection with this Waiver and Release.
8. Acknowledgment: Executive acknowledges that he has carefully read
and fully understands the terms of this Waiver and Release and the
Agreement and that this Waiver and Release is executed by Executive
voluntarily and is not based upon any representations or statements of any
kind made by Mirant, the Company or any or the other Released Parties as to
the merits, legal liabilities or value of his claims. Executive further
acknowledges that he has had a full and reasonable opportunity to consider
this Waiver Release and that he has not been pressured or in any way
coerced into executing this Waiver and Release.
9. Choice of Laws: This Waiver and Release and the rights and
obligations of the parties hereto shall be governed and construed in
accordance with the laws of the State of Georgia.
10. Severability: With the exception of the waiver and releases
contained in Sections 1 and 2 above, if any provision of this Waiver and
Release is unenforceable or is held to be unenforceable, such provision
shall be fully severable, and this Waiver and Release and its terms shall
be construed and enforced as if such unenforceable provision had never
comprised a part hereof, the remaining provisions hereof shall remain in
full force and effect, and the court construing the provisions shall add as
a part hereof a provision as similar in terms and effect to such
unenforceable provision as may be enforceable, in lieu of the unenforceable
provision. In the event that both of the releases contained in Sections 1
and 2 above are unenforceable or are held to be unenforceable, the parties
understand and agree that the remaining provisions of this Waiver and
Release shall be rendered null and void and that neither party shall have
any further obligation under any provision of this Waiver and Release.
11. Entire Agreement: This document contains all terms of the Waiver
and Release and supersedes and invalidates any previous agreements or
contracts regarding the same subject matter. No representations,
inducements, promises or agreements, oral or otherwise, which are not
embodied herein shall be of any force or effect.
IN WITNESS WHEREOF, the undersigned acknowledges that he has read this
Waiver and Release Agreement and sets his hand and seal this ____ day of
____________, 20__.
Xxxx Xxxxxx
Sworn to and subscribed before me this _____ day of ______________, 20__.
---------------------
Notary Public
My Commission Expires:
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MIRANT CORPORATION
By: ________________________
MIRANT SERVICES LLC
By: ________________________
