EXHIBIT 10.1.z
SEPARATION AGREEMENT
This Separation Agreement is hereby made by and between XXXXXXX X. XXXXXXX
(herein called "Employee") and AGL RESOURCES INC. (which, with its affiliates,
is herein called "the Company").
This Separation Agreement has been offered to the Employee for a period of
21 days for her consideration. After consultation with family, legal and
financial counselors, the Employee has determined to execute this Separation
Agreement with the Company in exchange for certain benefits. In consideration of
the mutual benefits to each party, the parties agree as follows:
1. DATE OF SEPARATION. The Employee will cease to be an employee of the
Company effective as of Tuesday, October 31, 2000 (the "Separation Date").
2. SEVERANCE PAY. The Employee will be entitled to severance pay equal to 12
months of her current base salary. The severance pay shall be payable on a semi-
monthly basis or every two weeks for 12 months following the Separation Date
(the "Separation Period").
3. BONUS. The Company agrees to pay the Employee a lump sum amount of
$122,000.
4. WELFARE AND OTHER BENEFITS. Unless otherwise specified below, upon the
Separation Date, the Employee shall cease to participate in the Company's
employee benefit plans, pursuant to the terms and conditions of the plan
documents.
(a) Executive Allowance Fund. The Employee shall continue to participate
in the Executive Allowance Fund until October 31, 2001 on a prorated
basis (1) remainder in total for 2000 and (2) $12,500 for 2001. The
Employee shall reimburse the Company for any expenses incurred by the
Employee in excess of her Executive Allowance for the year (or portion
thereof), and if any amount remains unused at the end of the year (or
portion thereof), the Company shall pay the Employee a lump sum in the
amount of the remainder. On or prior to December 31, 2000, the
Employee shall transfer her leased automobile to the Company in good
condition (except for normal wear and tear), and after the date of the
transfer, the Company shall be responsible for all future costs of the
lease on such automobile.
(b) AGL Resources Inc. Retirement Saving Plus Plan and Nonqualified
Savings Plan. Upon the Separation Date, the Employee shall cease to
participate in the RSP and the NSP. As soon as practicable after the
Separation Date, the Employee's vested account balance in the RSP and
the NSP will become payable to her. In addition, to the extent any
portion of the Employee's matching contributions under the RSP and/or
the NSP is forfeited due to her separation, the Company shall pay her
an amount equal to the forfeited matching contributions. The Company
shall pay such amount in a lump sum from its general assets.
(c) Outplacement Services. The Employee shall be entitled to certain
career transition services, such as planning job search strategies,
evaluating personal strengths and weaknesses, resume preparation and
training in interview techniques, for a period of up to 12 months
through a provider selected by the Company. The Employee may enter the
program at any time during the 12-month period immediately following
the Separation Date.
(d) Stock Options. All 67,000 outstanding stock options held by the
Employee on the Separation Date shall immediately terminate pursuant
to the terms of the Company's long-term incentive plan under which
they were granted. The Company agrees to provide the Employee a lump
sum cash payment equal to $201,000 (which reflects $3.00 x 67,000)
plus stock appreciation rights for a period of two (2) years following
the Separation Date, based on the exercise prices of the Employee's
stock options, which stock appreciation rights would become
exercisable only upon a Change in Control of the Company (as that term
is defined in the Company's Long-Term Incentive Plan (1999)).
(e) Restricted Stock and Performance Units. Any unvested Restricted Stock,
Performance Unit or other equity-based right held by the Employee on
the Separation Date shall terminate and be forfeited as of the
Separation Date.
(f) Unused Earned Vacation. As soon as practicable following the
Separation Date, the Company shall pay the Employee, in a lump sum, an
amount equal to her accrued but unused 2000 vacation entitlement.
(g) Employee Assistance Plan. As a welfare benefit plan, the EAP is
subject to the Employee's continuation of her coverage under the EAP
for a period of eighteen months following the Separation Date. The
Company will pay all premiums on behalf of the Employee for the
continuation coverage period.
(h) Laptop Computer and Cell Phone Expenses. The Company agrees that the
Employee may retain the laptop computer currently assigned to her by
the Company following her separation; provided, that the Employee
agrees to return the computer to the Company within three (3) days
following the Separation Date so that the Company may remove any
software protected by limited use licenses as well as any confidential
Company information from the computer. In addition, the Company agrees
to pay the Employee's cellular telephone expenses (pursuant to the
Company's normal policies) through the Separation Date.
5. RESTRICTIVE COVENANTS. For and in consideration for the payment and
benefits provided to the Employee under this Separation Agreement, the Employee
agrees to the terms of the following:
(a) Covenant Not to Compete. The Employee covenants and agrees that,
during the period beginning on the Separation Date and ending one (1)
year thereafter, she will not directly or indirectly, on her own
behalf or on behalf of any person or entity, compete with the Company
by performing activities or duties substantially
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similar or related to the functions, activities or duties performed by
the Employee for the Company for any business entity engaged in direct
competition with the Company. A business entity shall be considered to
be "in direct competition" with the Company if it is engaged in
producing, manufacturing, distributing, marketing, selling, servicing
or repairing products similar to products produced, manufactured,
distributed, marketed, sold, serviced or repaired by the Company,
including (but not limited to) any type of production and distribution
of any energy source, whether by cultivation of natural resources or
by technology. This restriction shall apply only to a restricted
territory within a 100-mile radius of any locations, sites or
facilities in which the Company (including its affiliates) maintains
offices, operations or service contracts or has provided services
during the 12-month period immediately preceding the Separation Date.
(b) Nondisclosure and Confidentiality. The Employee acknowledges and
agrees that during the term of her employment, she has had access to
trade secrets and other confidential information unique to the
business of the Company and that the disclosure or unauthorized use of
such trade secrets or confidential information by the Employee would
injure the Company's business. Therefore, the Employee agrees that she
will not, for a period of two (2) years following the Separation Date,
use, reveal or divulge any trade secrets or any other confidential
information which, while not trade secrets or information unique to
the Company's business, is highly confidential and constitutes a
valuable asset of the Company by reason of the material investment of
the Company's time and money in the production of such information.
The Employee agrees that she will not use, reveal or divulge any
general confidential or customer-related information.
(c) Nonsolicitation. Due to the Employee's extensive knowledge of the
specifics of the Company's business, and its customers and clients,
the Employee agrees that, in consideration of the payments and
benefits she is receiving hereunder, for a period of two (2) years
following the Separation Date, she will not, without the prior written
consent of the Company, either directly or indirectly, on her own
behalf or in the service or on behalf of others, solicit, divert or
appropriate, or attempt to solicit, divert or appropriate, to any
business that competes with the Company's business any person or
entity who transacted business with the Company during the year
preceding the Separation Date. This provision shall be specific to any
and all persons or entities with whom the Employee has (i) had direct
contact, (ii) been a party to marketing or sales strategies with
regard to, or (iii) been privy to marketing or sales strategies with
regard to such persons or entities. For purposes of this provision,
the Company's business shall include any and all aspects of producing,
manufacturing, distributing, marketing, selling, servicing or
repairing products similar to products produced, manufactured,
distributed, marketed, sold, serviced or repaired by the Company
and/or any of its affiliates, including (but not limited to) any type
of production and distribution of any energy source, whether by
cultivation of natural resources or by technology.
The Employee agrees that in consideration for the payments and
benefits she is receiving hereunder, for a period of two (2) years
following the Separation Date,
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she will not, either directly or indirectly, on her own behalf or in
the service or on behalf of others solicit, divert or hire away, or
attempt to solicit, divert or hire away to any business that competes
with Company's business any person employed by the Company, or any
person who was employed by the Company at any time during the period
beginning one (1) year prior to the Separation Date.
6. COOPERATION AFTER SEPARATION DATE. The Employee agrees to cooperate fully
with the Company for a period of two (2) years following the Separation
Date and to reasonably assist the Company and to act on its behalf
thereafter on all matters relating to her employment, her duties and the
conduct of business, including any litigation, claim or suit involving the
Company as a party or witness and as to which the Employee possesses
knowledge or information which is relevant to the litigation or in which
the Company deems that the Employee's cooperation is needed. The Company
agrees to reimburse the Employee for all reasonable "out-of-pocket"
expenses related to provision of the services referenced in this paragraph,
provided the Employee receives advance approval of such expenses by the
Company's Chief Employee Officer and provides the Company with receipts and
invoices for all such expenses in accordance with the general expense
reimbursement policy.
7. CONFIDENTIALITY AGREEMENT. The Employee and the Company understand and
agree that, due to the sensitive nature of this matter, the terms of this
Agreement are to be kept private and confidential and that the terms of
this Agreement shall not be disclosed, unless the party(ies) is (are)
required by law to do so. While not limiting the generality of the
foregoing, disclosure includes any statement, written or oral, to any
person, including, but not limited to, any current or former employees of
the Company. The parties to this Agreement acknowledge that there will be
circumstances under which some or all of the terms of this Agreement will
have to be made known to some individuals in the regular course of
conducting business and personal affairs. In keeping with that
understanding, the Company agrees that the Employee may discuss the terms
of this agreement with her attorneys, accountants, tax advisors and her
immediate family. The Employee agrees to advise such individuals of the
confidentiality provisions of this Agreement and will advise anyone so
named of the requirement to keep the terms of this Agreement confidential.
Should the Employee disclose any of the terms of this Agreement to persons
(whether entities or individuals) other than those specified in this
section, then such actions shall constitute a breach on the part of the
Employee.
8. NONDISPARAGEMENT. The Employee agrees that she shall not make any untrue
statement or criticism, written or oral, nor take any action which is
adverse to the interests of the Company or that would cause the Company,
its affiliates, subsidiaries, divisions or its current and former officers,
directors, employees, agents, or shareholders embarrassment or humiliation
or otherwise cause or contribute to such persons being held in disrepute by
the public or the Company's clients, customers, or Employees. From and
after the Separation Date, the Employee shall refrain from discussing the
terms and conditions of the termination of the Employee's employment with
any employee, agent, client or customer of the Company. The Company agrees
that it shall not make any untrue statement or criticism, written or oral,
nor take any action which is adverse to the
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interests of the Employee or that would cause the Employee embarrassment or
humiliation or otherwise cause or contribute to her being held in disrepute
by the public or the Company's clients, customers or Employees. The
obligations under this Section shall survive the termination of this
Agreement.
9. NEUTRAL REFERENCES. The Employee acknowledges and agrees that the Company
shall provide the Employee, upon the request of the Employee, or any other
prospective employer of the Employee, upon the request of the Employee,
with a neutral reference letter which will contain a factual recitation of
the Employee's employment history with the Company, and which will include
dates of hire and termination, positions held and similar factual
information. This neutral reference letter will contain no evaluation
information as to the Employee's job performance or job history.
10. RETURN OF COMPANY DOCUMENTS AND PROPERTY. The Employee hereby represents
and warrants that, as of the Execution Date of this Agreement, she has
returned to the Company all documents (including copies and computer
records thereof) of any nature which relate to or contain proprietary or
confidential information concerning Company, its customers, or employees,
and any and all property of the Company which has been in her possession,
including, except as otherwise herein provided, any computers, computer
programs or limited use software licenses in her possession. The Employee
confirms that all confidential information is and shall remain the
exclusive property of the Company. All business records, papers and
documents kept or made by the Employee relating to the business of the
Company shall be and remain the property of the Company, except for such
papers customarily deemed to be the personal copies of the Employee.
Information in the public domain or information that is commonly known by
or available to the public through the Company's press releases, public
documents, annual reports, SEC filings or other public filings shall not be
considered proprietary or confidential information.
11. GENERAL RELEASE. The Employee agrees, for herself, her spouse, heirs,
executor or administrator, assigns, insurers, attorneys and other persons
or entities acting or purporting to act on her behalf, to irrevocably and
unconditionally release, acquit and forever discharge the Company, its
affiliates, subsidiaries, directors, officers, employees, shareholders,
partners, agents, representatives, predecessors, successors, assigns,
insurers, attorneys, benefit plans sponsored by the Company and said plans'
fiduciaries, agents and trustees, from any and all actions, cause of
action, suits, claims, obligations, liabilities, debts, demands,
contentions, damages, judgments, levies and executions of any kind, whether
in law or in equity, known or unknown, which the Employee has, has had, or
may in the future claim to have against the Company by reason of, arising
out of, related to, or resulting from Employee's employment with the
Company or the termination thereof. This release specifically includes
without limitation any claims arising in tort or contract, any claim based
on wrongful discharge, any claim based on breach of contract, any claim
arising under federal, state or local law prohibiting race, sex, age,
religion, national origin, handicap, disability or other forms of
discrimination, any claim arising under federal, state or local law
concerning employment practices, and any claim relating to compensation or
benefits. This specifically includes, without limitation, any claim
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which the Employee has or has had under Title VII of the Civil Rights Act
of 1964, as amended, the Age Discrimination in Employment Act, as amended,
the Americans with Disabilities Act, as amended, and the Employee
Retirement Income Security Act of 1974, as amended. It is understood and
agreed that the waiver of benefits and claims contained in this Section
does not include a waiver of the right to payment of any vested,
nonforfeitable benefits to which the Employee or a beneficiary of the
Employee may be entitled under the terms and provisions of any employee
benefit plan of the Company which have accrued as of the Separation Date
and does not include a waiver of the right to benefits and payment of
consideration to which the Employee may be entitled under this Agreement.
The Employee acknowledges that she is only entitled to the additional
benefits and compensation set forth in this Agreement, and that all other
claims for any other benefits or compensation are hereby waived, except
those expressly stated in the preceding sentence.
12. PENALTIES. In addition to any legal or equitable remedies available to the
Company, including injunctive relief, the Employee agrees and acknowledges
that if she violates any provision of this Separation Agreement, the
Company may immediately cease any and all payments and benefits payable to
the Employee hereunder.
13. REVOCATION PERIOD. For a period of seven (7) days following execution of
this Separation Agreement, the Employee may revoke this Separation
Agreement by sending written notice of revocation by Certified Mail (return
receipt requested) within that period to:
Xx. Xxxxx X. Rosput
President and Chief Executive Officer
AGL Resources Inc.
000 Xxxx Xxxxxxxxx Xxxxxx, X.X.
Xxxxx Xxxxx
Xxxxxxx, XX 00000
14. GOVERNING LAW. This Separation Agreement shall be construed in accordance
with, and governed by, the laws of the State of Georgia, except to the
extent that the laws of the United States shall otherwise apply.
15. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement between
the parties with respect to the subject matter hereof and supercedes all
prior and contemporaneous oral and written agreements and discussions. In
addition, any and all other agreements in existence between the Employee
and the Company shall terminate immediately as of the Separation Date.
16. EFFECTIVE DATE. For purposes of this Agreement, the "Effective Date" of
this Agreement shall be the date on which this Agreement becomes effective,
which shall be the date which is exactly eight (8) days following the
Execution Date, unless this Agreement has been revoked by the Employee
prior to such date in accordance with the provisions of this Agreement. The
Execution Date shall mean that date on which this Agreement is executed by
the parties.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement on
the 10th day of November, 2000.
EMPLOYEE:
/s/ Xxxxxxx X. Xxxxxxx
-----------------------------------------
Xxxxxxx X. Xxxxxxx
COMPANY:
AGL RESOURCES INC.
BY: /s/ Xxxxx X. Rosput
-------------------------------------
Xxxxx X. Rosput
President & Chief Executive Officer
[THIS DOCUMENT HAS BEEN EXECUTED IN DUPLICATE.]
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