Exhibit 10.77
Execution Copy
AGREEMENT
By And Between
S. Xxxx Xxxxxxxx
And
Edison Mission Energy
February 5, 2000
Execution Copy
Table of Contents
Page
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ARTICLE 1: DEFINITIONS; INTERPRETIVE MATTERS......................................... 1
Section 1.01 Definitions...................................................... 1
Section 1.02 Interpretive Matters............................................. 3
ARTICLE 2: EMPLOYMENT AND COMPENSATION............................................... 3
Section 2.01 Resignation...................................................... 3
Section 2.02 Further Assurances............................................... 4
Section 2.03 Effect of Resignation............................................ 4
Section 2.04 Compensation and Benefits........................................ 4
Section 2.05 Withholding...................................................... 8
Section 2.06 Company Property................................................. 8
Section 2.07 Releases......................................................... 8
ARTICLE 3: ADDITIONAL COVENANTS OF EXECUTIVE......................................... 9
Section 3.01 Confidentiality.................................................. 9
Section 3.02 Stock Activity................................................... 11
Section 3.03 Intentionally Omitted............................................ 12
Section 3.04 Non-Solicitation; Non-Disparagement; Non-Interference............ 12
Section 3.05 Ownership of Works............................................... 13
Section 3.06 Cooperation With Legal Process................................... 13
ARTICLE 4: GENERAL PROVISIONS........................................................ 14
Section 4.01 Opportunity to Review With Counsel............................... 14
Section 4.02 Choice of Law.................................................... 14
Section 4.03 Remedies......................................................... 14
Section 4.04 Severability..................................................... 14
Section 4.05 No Amendment; Entire Agreement; No Waiver........................ 14
Section 4.06 Right Of Offset.................................................. 15
Section 4.07 Parties of Interest.............................................. 15
Section 4.08 Notices.......................................................... 15
Section 4.09 Counterparts..................................................... 15
Section 4.10 Publicity........................................................ 16
Section 4.11 Headings......................................................... 16
Section 4.12 Attorneys Fees................................................... 16
Section 4.13 Further Assurances............................................... 16
Section 4.14 Additional Covenants of the Company.............................. 16
Section 4.15 Dispute Resolution............................................... 16
Section 4.16 Approvals........................................................ 17
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Execution Copy
SCHEDULE OF ADDRESSES
SCHEDULE OF DEFERRED COMPENSATION
SCHEDULE OF OTHER TERMINATED BENEFITS
SCHEDULE OF RETIREMENT BENEFITS
SCHEDULE OF VESTED OPTIONS
FORM OF GENERAL RELEASE
FORM OF AGE DISCRIMINATION RELEASE
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Execution Copy
AGREEMENT
THIS AGREEMENT ("Agreement") is entered into as of February 5, 2000 by and
between S. Xxxx Xxxxxxxx (the "Executive") and Edison Mission Energy, a
California corporation (the "Company").
RECITALS
WHEREAS, the Executive is an American citizen who was hired by the Company
in California and employed there during most of his employment with the Company;
WHEREAS, the Executive has recently been working for the Company in the
United Kingdom as Senior Vice President of the Company with responsibility for
its European operations; and
WHEREAS, the Company has requested and Executive has agreed to resign from
his positions at the Company on the terms set forth herein;
NOW, THEREFORE, in consideration of the mutual agreements and covenants of
the parties herein contained, and for other good and valuable consideration the
receipt and sufficiency of which are hereby acknowledged, the parties do hereby
agree as follows.
ARTICLE 1: DEFINITIONS; INTERPRETIVE MATTERS
SECTION 1.01 DEFINITIONS. As used herein the following terms have the
following meanings:
(a) "Affiliate" means, with respect to a specified Person, any
Person that, directly or indirectly, through one or more intermediaries,
controls, is controlled by, or is under common control with, such specified
Person.
(b) "Agreement" has the meaning specified in the introductory
paragraph of this Agreement.
(c) "Claims" has the meaning specified in the form of General
Release attached hereto.
(d) "Company" has the meaning specified in the introductory
paragraph of this Agreement.
(e) "Confidential Information" has the meaning specified in Section
3.01(a).
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(f) "Deferral Plans" means the Edison International Executive
Deferred Compensation Plan and the Edison International Option Gain Deferral
Plan.
(g) "Effective Date" shall be February 8, 2000.
(h) "Equity Plans" has the meaning specified in Section 2.04(d).
(i) "Exchange Offer" means the exchange offer for the Company's
phantom options contemplated by that certain memorandum dated January 17, 2000
from Xxxx X. Xxxxxx to holders of the Company's phantom options, which is based
on an Exchange Offer assumed gross amount of $471.0647 per phantom EME Share
(less exercise prices) as the terms of which may be amplified, extended or
modified by the Company in the future, but the term "Exchange Offer" shall not
include any exchange offer made after the expiration or termination of the first
such exchange offer.
(j) "Executive" has the meaning specified in the introductory
paragraph of this Agreement.
(k) "Group" means two or more Persons which agree to act together
for the purpose of acquiring, holding, voting or disposing of Voting Stock or of
acquiring, holding or disposing of any significant subsidiary, or significant
amount of assets, of the Company or any Affiliate of the Company.
(l) "Materials" has the meaning specified in Section 3.05.
(m) "Options" has the meaning specified in Section 2.04(d).
(n) "Parent" means Edison International, a California corporation.
(o) "Person" means and includes an individual, a partnership, a
limited liability company, a joint venture, a corporation, a trust, an
unincorporated organization, a government or any department or agency thereof or
any entity similar to any of the foregoing.
(p) "Releasee" has the meaning specified in the form of General
Release attached hereto.
(q) "Releasor" has the meaning specified in the form of General
Release attached hereto.
(r) "Schedule of Addresses" means the Schedule of Addresses attached
hereto and incorporated herein by reference.
(s) "Schedule of Deferred Compensation" means the Schedule of
Deferred Compensation attached hereto and incorporated herein by reference.
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(t) "Schedule of Other Terminated Benefits" means the Schedule of
Other Terminated Benefits attached hereto and incorporated herein by reference.
(u) "Schedule of Retirement Benefits" means the Schedule of
Retirement Benefits attached hereto and incorporated herein by reference.
(v) "Schedule of Vested Options" means the Schedule of Vested
Options attached hereto and incorporated herein by reference.
(w) "Voting Stock" means shares of capital stock of the Parent that
are entitled to vote in periodic elections for directors and any shares of
capital stock, or similar securities, of the Company and any Affiliate of the
Parent which are entitled to vote in periodic elections for directors or other
similar governing board members.
(x) "Works" has the meaning specified in Section 3.05.
SECTION 1.02 INTERPRETIVE MATTERS. In this Agreement, unless the context
otherwise requires, the singular shall include the plural, the masculine shall
include the feminine and neuter, and vice versa. The terms "includes" or
"including" shall mean "including without limitation." References to a Section,
Article, Exhibit or Schedule shall mean a Section, Article, Exhibit or Schedule
of this Agreement, and reference to a given agreement or instrument shall be a
reference to that agreement or instrument as modified, amended, supplemented and
restated through the date as of which such reference is made. This Agreement
and any documents or instruments delivered pursuant hereto shall be construed
without regard to the identity of the Person who drafted the various provisions
of the same. Each and every provision of this Agreement and such other
documents and instruments shall be construed as though the parties participated
equally in the drafting of the same. Consequently, the parties acknowledge and
agree that any rule of construction that a document is to be construed against
the drafting party shall not be applicable either to this Agreement or such
other documents and instruments.
ARTICLE 2: EMPLOYMENT AND COMPENSATION
SECTION 2.01 RESIGNATION. Effective upon the Company's approval and
execution of this Agreement, Executive does hereby resign from any and all
positions of responsibility or authority at the Company, any subsidiary, parent
or Affiliate of the Company, any other entity in which the Company or any of its
Affiliates has an investment where Executive's position with such entity is
related to such investment, and any division, unit, plan, program, trust, fund,
project or other subdivision established, organized or sponsored by the Company
or any of its subsidiaries, parents or Affiliates or any such other entity,
whether such position is that of an agent, officer, manager, member, partner,
executive, trustee,
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administrator, director or otherwise. Notwithstanding the foregoing, if the
Effective Date is after the date hereof, then between the date hereof and the
Effective Date, Executive shall remain an employee of the Company on
administrative leave, entitled to compensation for such period at his current
base rate of salary and existing fringe benefits, but it is understood that
Executive shall have no authority to bind or to determine or direct any activity
of, or represent, the Company or any of its Affiliates during such period. Upon
the Effective Date, and without any further action by Executive or the Company,
Executive's employment with the Company shall end.
SECTION 2.02 FURTHER ASSURANCES. To the extent necessary, Executive
agrees from time-to-time, upon the Company's reasonable request, to execute any
and all documents as may be necessary or desirable, in the reasonable and good
faith judgment of the Company or any of its Affiliates, to further confirm
and/or effectuate the aforesaid resignations.
SECTION 2.03 EFFECT OF RESIGNATION. Executive and the Company agree that
the resignation contained herein arises from the mutual agreement of the
Executive and the Company, resulting in a cessation of Executive's continued
employment. Such resignation shall be given the same effect as a termination of
Executive's employment by the Company without cause for purposes of the
Company's benefit plans including the Deferral and Equity Plans, but shall not
constitute or be deemed to be any breach of any employment or other obligation
or duty by either the Executive or by the Company or any of its Affiliates,
whether express or implied, for any purpose.
SECTION 2.04 COMPENSATION AND BENEFITS. Executive hereby agrees that the
following accurately reflect all of the compensation, benefits or perquisites
payable or otherwise to be provided to Executive by the Company and its
Affiliates on and after the Effective Date as a result of Executive's employment
by and separation from the Company and its Affiliates and that Executive is not
entitled to any other compensation, benefits, or perquisites except as set forth
in this Agreement:
(a) Salary. On the Effective Date, Executive will receive accrued
base salary from the end of the immediately preceding payroll period for which
payment has been made through the Effective Date.
(b) Accrued Vacation. On the Effective Date, the Company will pay
Executive such amounts as are due Executive for accrued and unused vacation time
in accordance with the Company's usual policies.
(c) Executive Incentive Compensation Plan. On the Effective Date,
the Company will pay Executive a bonus amount for the 1999 year under the
Company's Executive Incentive Compensation Plan equal to a gross amount, before
withholding, of One Hundred Seventy-Seven Thousand Five Hundred U.S. Dollars
Exactly (U.S.$177,500). Executive shall not be entitled to any further payments
under the Company's Executive Incentive Compensation Plan, including for any
period after 1999. Nothing in this paragraph shall
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create any inference or expectation regarding bonuses actually to be paid to
participants in such Plan for the 1999 year, which may be above or below target
amounts for individuals or in the aggregate.
(d) Options. For purposes of the vesting of any unvested awards
previously made to Executive under the Edison International Equity Compensation
Plan or under the Edison International Management and Officer Long-Term
Incentive Compensation Plans (the "Equity Plans"), Executive's employment by the
Company shall be given the same effect as if Executive had remained regularly
employed through the Effective Date. Executive and the Company agree that, as
of the Effective Date, Executive's vested options to acquire stock of the Parent
have been exercised in full and that vested phantom options in respect of the
Company are as set forth in the Schedule of Vested Options attached hereto and
incorporated herein by reference (the "Options"). From and after the Effective
Date, the Executive shall no longer be eligible for grants of any awards under
the Equity Plans or under any other long-term incentive plan of the Company or
its Affiliates, and all unvested awards shall terminate as of the Effective
Date. On March 16, 2000, the Company shall pay to Executive, by wire transfer
in accordance with Executive's reasonable written instructions given at least
forty-eight (48) hours in advance, a gross amount, before withholding, that is
equal to the difference between U.S.$441.008 per phantom share and the pertinent
exercise price of such share as shown on the Schedule of Vested Options for each
vested phantom Option of the Company. From and after the date hereof, Executive
shall have no further rights or entitlements in respect of such phantom Options
or any phantom options in respect of the Company subject to the following:
provided that in the event that (i) such Exchange Offer is closed, and (ii) the
terms on which such Exchange Offer is closed provide to holders of phantom
options who were employed on the Effective Date (excluding any employee whose
employment ends due to death, disability or normal retirement) a non-contingent
exchange value per phantom share (excluding interest and anything of value that
is subject to vesting on the performance of future services) that exceeds, as of
the consummation of the Exchange Offer, U.S.$441.008 per phantom share, then and
in such event, within thirty (30) days following the close of such Exchange
Offer, the Company shall pay to Executive a gross amount, in cash, before
withholding, equal to such excess multiplied by the number of total phantom
Options of Executive shown on the Schedule of Vested Options. For the purpose
of this section, the Exchange Offer will close when the Company determines that
the conditions of the Exchange Offer are met and the Exchange Offer is
consummated which is currently contemplated for April 1, 2000.
(e) Deferral Plans. The Schedule of Deferred Compensation attached
hereto and incorporated herein by reference sets forth, as of the date shown,
the vested balance of Executive's deferral account in the Edison International
Executive Deferred Compensation Plan and units credited to Executive's stock
unit account in the Edison International Option Gain Deferral Plan. All
deferred compensation benefits shown on the Schedule of Deferred Compensation,
following the Effective Date, shall remain subject to the terms of the Deferred
Compensation Plan applicable thereto.
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(f) Retirement Benefits. The Schedule of Retirement Benefits
attached hereto and incorporated herein by reference sets forth, as of the
Effective Date, the vested benefits payable to Executive under retirement plans
of the Company and its Affiliates in which he has been a participant. All such
benefits shown on the Schedule of Retirement Benefits, following the Effective
Date, shall remain subject to the terms of the pertinent retirement plan
applicable thereto, including the conditions to payment set forth therein.
After the Effective Date, there will be no further accrual of benefits for
Executive under such retirement plans.
(g) Health Benefits. From the Effective Date until eighteen (18)
months thereafter, Executive and his family shall remain eligible to continue to
participate in medical and dental plans of the Company and its Affiliates on the
same basis as if Executive had remained employed by the Company in his current
position, provided that Executive shall be responsible for paying the premium
costs therefor in accordance with the Company's ordinary practices in respect of
former employees.
(h) Other Insurance Coverage. Executive acknowledges that, except
as provided in Section 2.04(g) above, no life, health, accident, disability or
other insurance policies or health or welfare benefits will be provided for him
by the Company or its Affiliates after the Effective Date.
(i) Contract Costs. The Company will reimburse Executive for the
reasonable fees and costs of any attorney, financial advisor, accountant and/or
other professional advising and assisting Executive in the negotiations of this
Agreement, up to Twenty-Five Thousand U.S. Dollars Exactly (U.S$25,000) in the
aggregate.
(j) Outstanding Expense Reports. Executive agrees to submit to the
Company an expense report for all reimbursable and reasonable expenses he has
incurred as an employee of the Company no later than the fifteenth business day
following the Effective Date, and acknowledges that the business expenses to be
contained in such expense report will be the only remaining reimbursable
business expenses incurred by Executive while in the Company's employ. The
Company will reimburse Executive for such expenses within thirty (30) days of
Executive's submission of the report, to the extent such expenses are valid and
reimbursable under Company policy.
(k) Severance. As further consideration for Executive's execution
of this Agreement, the Company agrees to provide the following severance
benefits to Executive:
(i) On the Effective Date, the Company shall make a one-time
severance payment to Executive in an amount, prior to withholding, that is equal
to Three Hundred Seventy-Five Thousand U.S. Dollars Exactly (U.S.$375,000).
(ii) The Company currently pays Executive One Thousand Eight
Hundred Twenty-Five U.S. Dollars Exactly (U.S.$1,825), before withholding, every
other week as an overseas living allowance. The Company shall continue to make
such payments
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until the earlier of (x) the first anniversary of this Agreement, and (y) the
relocation of the primary residence of Executive's family back to the United
States.
(iii) In the event that the primary residence of Executive's
family is relocated from London, England to the United States prior to the
second anniversary of the date hereof, then the Company shall reimburse the
reasonable costs of such relocation in accordance with the usual policies and
practices of the Company in respect of similar relocations, including provision
of supporting documentation, provided that, the Company's obligation for such
reimbursement shall not exceed One Hundred Fifty Thousand U.S. Dollars Exactly
(U.S.$150,000) in the aggregate. Notwithstanding the foregoing, such reasonable
costs shall not include any costs related to finding or acquiring a residence in
the United States and the Company shall have the right to select and/or approve
all providers of services to Executive and his family in connection with such
relocation if the Company is responsible for the reimbursement of the costs of
same.
(iv) The Company shall permit Executive and his family to
occupy the Company-owned residence currently occupied by Executive and his
family until the first anniversary of the date hereof on the same terms and
conditions (i.e., rent-free) as such apartment is currently occupied by
Executive. If Executive desires to continue to occupy such premises after such
date, then he shall so notify the Company in writing no later than November 1,
2000. In such event, from and after the first anniversary of the date hereof,
the Executive shall, subject to the availability of and the terms of the lease
for such apartment, assume all of the Company's obligations in respect of such
apartment and shall pay and discharge the same as and when due or, at the
Company's election, reimburse the Company for the actual costs of all such
obligations. Executive shall execute customary documents reasonably requested by
the Company to memorialize such arrangement. Such arrangement shall be
terminable by Executive at any time on sixty (60) days' prior written notice to
the Company and shall be terminable by the Company only for Executive's breach
of his obligations in respect of such apartment and unless such breach has been
cured within thirty (30) days following the Company's written notice of breach,
provided that, Executive's right to occupy such premises shall in all events
expire on July 31, 2001. If Executive fails timely to notify the Company of his
intent to continue to occupy the premises and assume all of the Company's
obligations therefor, he shall voluntarily and entirely vacate the premises by
the first anniversary of the date hereof.
(v) Executive hereby acknowledges that he is not entitled to
any of the foregoing severance benefits or compensation described in Section
2.04(k) either by contract or California law. The Company is providing these
severance benefits and compensation in consideration for Executive's execution
of this Agreement and to compensate him for any alleged and/or claimed losses
allegedly due to the resignation of his employment.
(vi) If for any reason, any claim, demand, obligation, cause of
action, debt, expense, damage, judgment, order or liability is not released or
is found to survive the Form of General Release and Form of Age Discrimination
Release executed by Ex-
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ecutive, the full amount of the monetary benefits provided under Section 2.04(k)
shall be a credit towards and/or a set off against any monetary or other award
on such claim, demand, obligation, cause of action, debt, expense, damage,
judgment, order or liability regardless of the jurisdiction, foreign or
domestic, in which it arises or is issued.
(l) Other Compensation. Executive acknowledges that from and after
the Effective Date, all other compensation, benefits and perquisites to which he
has been entitled as an employee of the Company shall forthwith terminate and
that he shall no longer be entitled to receive the same, including without
limitation, reimbursement for the costs of a car and driver and for private club
memberships. Without limiting the generality of the foregoing, the other
benefits and perquisites in which Executive currently participates which shall
no longer be available to him after the Effective Date are as set forth in the
Schedule of Other Terminated Benefits attached hereto and incorporated herein by
reference.
SECTION 2.05 WITHHOLDING. Executive agrees that all compensation,
benefits and perquisites payable hereunder shall be paid after withholding for
taxes which, in the Company's reasonable good faith judgment, are required to be
withheld by the Company, including income taxes at the then current published
rates unless Executive elects to use higher rates. Notwithstanding the
foregoing, it is understood that all personal income and related taxes
applicable to any and all compensation, benefits and perquisites payable
hereunder shall be paid by Executive, and the Company shall not be obligated to
pay any such taxes or to provide Executive with funds for the payment of same.
SECTION 2.06 COMPANY PROPERTY. Subject to Section 2.04(k)(iv), Executive
agrees to return to the Company, as soon as practicable, but in any event on or
prior to the Effective Date, all Company property, including, but not limited
to, all keys, credit cards, documents, equipment (including computer and
telephone equipment) automobiles, files, data and records of any kind whatsoever
that he has in his possession or control regardless of the form for storage
thereof (whether documentary, on discs or present on other electronic media).
The Company agrees to permit Executive to retain copies of documents that are
contained in his office files and that are personal in nature, subject to the
Company's prior review of such materials and approval of their retention by the
Executive. Notwithstanding the foregoing, the Company will cooperate and work
together with Executive to facilitate Executive's assumption of the Company's
future obligations in respect of any automobile currently leased by the Company
for Executive if Executive chooses to assume such obligations.
SECTION 2.07 RELEASES. In further consideration of the Company's entry
into this Agreement with Executive and its promise to make payments and to
provide benefits hereunder to which Executive is not otherwise entitled,
Executive is, concurrent with the Company's execution of this Agreement,
delivering to the Company executed copies of the forms of releases attached
hereto, respectively, as "Form of General Release" and "Form of Age
Discrimination Release." In the event that the Executive exercises his right to
rescind
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the Age Discrimination Release, then notwithstanding any other provision of this
Agreement, the Company shall have the right, within five (5) days thereafter, to
terminate any and all further obligations of the parties under this Agreement.
ARTICLE 3: ADDITIONAL COVENANTS OF EXECUTIVE
SECTION 3.01 CONFIDENTIALITY.
(a) Executive acknowledges that he has held a sensitive management
position with the Company and that, by virtue of having held such position, he
has had access to and has learned the Company's and its subsidiaries' and
Affiliates' confidential and proprietary information and trade secrets
pertaining to its and their past, present, planned or projected operations,
results of operations, prospects, processes, know-how, services, projects,
strategies, techniques, procedures, financial capabilities, assets,
transactions, partners, financing sources and personnel, disclosure of any of
which to present or future competitors, investors, partners or the general
public would be highly detrimental to the best interests of the Company and its
Affiliates. All such confidential and proprietary information to which
Executive has had access as a result of his position with the Company are herein
referred to as "Confidential Information." Examples of such confidential and
proprietary information include, but are not limited to, the Company's
investigations of and development and analytical work on potential future
electric generation assets, both those potentially to be constructed and those
potentially to be acquired. Executive further acknowledges and agrees that the
right to maintain the confidentiality of such Confidential Information
constitutes a proprietary right which the Company and its Affiliates are
entitled to protect.
(b) Accordingly, without limiting any obligations of Executive
arising at law or pursuant to any existing agreement to which Executive is
bound, Executive covenants and agrees to and in favor of the Company that,
subject to the further provisions of this Agreement, Executive shall not
disclose any Confidential Information to any Person other than as approved by
the Company in writing in advance, and Executive shall not use for the
Executive's own purposes or for any purpose other than those of the Company and
its Affiliates any Confidential Information until such Confidential Information
has been otherwise publicly disclosed. Without limiting the generality of the
foregoing, Executive agrees that, except as permitted in writing by the Company,
he will not respond to or in any way participate in or contribute to any public
discussion, notice or other publicity concerning or in any way related to
Confidential Information or, subject to Section 4.10, any confidential matters
concerning his employment at the Company. Executive agrees that any disclosure
by him of any of the Confidential Information shall constitute a material breach
of this Agreement and of his fiduciary obligations to the Company.
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(c) For purposes of this Section 3.01, "Confidential Information"
does not include information which (i) is or becomes generally available to the
public other than as a result of disclosure by Executive, or (ii) was within the
Executive's possession prior to being furnished to the Executive by or on behalf
of the Company or its Affiliates, provided that the Executive did not receive
such information in a fiduciary capacity and provided further that the scope of
such information was not known to the Executive to be bound by a confidentiality
agreement with or other contractual, legal or fiduciary obligation of
confidentiality to the Company or any of its Affiliates or any other Person with
respect to such information.
(d) If Executive is requested or required (by oral questions,
interrogatories, requests for information or documents in connection with any
legal proceedings, subpoena, civil investigative demand or other similar
process) to disclose any Confidential Information, then Executive shall provide
the Company with prompt written notice of any such request or requirement so
that the Company may seek a protective order or other appropriate remedy and/or
waive compliance with the provisions of this Agreement. If, in the absence of a
protective order or other remedy or the receipt of a waiver from the Company,
the Executive is, in the written opinion of counsel reasonably acceptable to the
Company (the reasonable attorney's fees and costs of which opinion the Company
shall reimburse), legally compelled to disclose Confidential Information to any
tribunal or else stand liable for contempt, or suffer other censure or penalty,
then Executive may, without liability hereunder, disclose to such tribunal only
that portion of the Confidential Information which such counsel advises the
Executive is legally required to disclose, provided that Executive exercises
commercially reasonable efforts to preserve the confidentiality of the
Confidential Information, including, without limitation, by cooperating with the
Company to obtain an appropriate protective order or other reliable assurance
that confidential treatment will be accorded the Confidential Information by
such tribunal.
(e) Without limiting the provisions of Section 2.06, all files,
forms, brochures, books, materials, written correspondence, memoranda,
documents, manuals, computer disks, software products and lists that have in the
past or may in the future come into the possession or control of the Executive
as a result of his being an employee of or consultant to the Company shall at
all times remain as the property of the Company and not of the Executive. At
the time required by Section 2.06, and at any other time or times demanded by
the Company, Executive shall deliver promptly to the Company all such property
in the possession of the Executive or directly or indirectly under the control
of the Executive. Executive agrees not to make, for the use of the Executive or
of any other Person, reproductions or copies of any such property or other
property of the Company.
SECTION 3.02 STOCK ACTIVITY. Executive hereby agrees that from the date
hereof until the second anniversary of the Effective Date, Executive shall not:
(a) Acquire, by purchase or otherwise (except pursuant to
Executive's participation in employee benefit plans), offer to acquire or obtain
the right to acquire, propose
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to acquire, announce any intention or plan to acquire, or announce or make any
request for permission to acquire, directly or indirectly, any shares of Voting
Stock, or any other security convertible into or exercisable or exchangeable for
Voting Stock, unless (i) following such acquisition and after giving effect
thereto, the Executive and any Group of which he is a member, would not be
directly or indirectly the beneficial owners of more than five percent (5%) of
the outstanding shares of Voting Stock of the Parent, the Company or any
Affiliate thereof, as the case may be, and (ii) such acquisitions or offers or
agreements to acquire are made in open market transactions (or pursuant to the
Equity Plans);
(b) Directly or indirectly engage in, or become a member of a Group
which is engaging or which subsequently engages in, any tender offer or exchange
offer for any shares of Voting Stock;
(c) Take any other action, participate in or become a member of any
Group, or make any proposal, offer to acquire or obtain a right to acquire,
propose to acquire, announce any intention or plan to acquire, or announce or
make any request for permission to acquire, directly or indirectly or alone or
together with others, control of the Company or of any Affiliate of the Company
or of any division, business segment or significant amount of assets of the
Company or of any Affiliate of the Company;
(d) Enter into any voting agreement or proxy arrangement with
respect to shares of Voting Stock, or deposit any shares of Voting Stock into
any voting trust or similar entity, as a result of which the voting rights
associated with any or all of Executive's Voting Stock are vested in another
Person, other than proxies (or their substitutes) designated by the Board of
Directors of the issuer of such Voting Stock in proxy material for any meeting
of stockholders of such issuer;
(e) Conduct or become a participant in any solicitation of proxies
with respect to Voting Stock, or make any announcement with respect to any
solicitation of proxies, for the purpose of opposing a solicitation (for
election of directors or otherwise) approved by a majority of the whole Board of
Directors of the issuer of such Voting Stock, or present any proposal, or
solicit or become a participant in the solicitation of proxies in favor of a
proposal, for action at a meeting of the stockholders of such issuer, which is
not approved by a majority of the whole Board of Directors of such issuer;
(f) Enter into any plan, agreement or arrangement, or become a
member of any Group, for the purpose of engaging in any activity prohibited by
the foregoing paragraphs of this Section 3.02 ; or
(g) Assist directly or indirectly any other Person in connection
with such other Person's engaging in any activity which, if engaged in by the
Executive, would constitute a violation of this Section 3.02.
SECTION 3.03 INTENTIONALLY OMITTED.
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SECTION 3.04 NON-SOLICITATION; NON-DISPARAGEMENT; NON-INTERFERENCE.
During the period that begins on the date hereof and that ends on the second
anniversary of the Effective Date, Executive agrees that he will not, directly
or indirectly, for his own benefit, for the benefit of any Person other than the
Company or its Affiliates, or otherwise:
(a) Solicit, encourage or induce, or assist any Person to solicit,
encourage or induce, any officer, director, executive or employee of the Company
or its Affiliates to leave his or her employment with the Company or its
Affiliates for any reason, it being agreed that the foregoing shall not prohibit
Executive from soliciting the employment of his current secretarial assistant;
(b) Induce or attempt to induce any customer, supplier, financier,
government agency, independent contractor, developer, promoter or other Person
having any business or regulatory relationship with the Company or any of its
Affiliates to cease, reduce or alter the nature, amount or terms of business
conducted or regulatory oversight or practices followed with respect to the
Company or any of its Affiliates or to engage in any business, regulatory or
other activity which might materially harm the Company or any of its Affiliates
or which is opposed by the Company and its Affiliates;
(c) Make or cause to be made any public statement that is
disparaging of the Company or any of its Affiliates or their respective
businesses or that materially injures the business or reputation of the Company
or any of its Affiliates or their respective businesses; or
(d) Directly or indirectly advise, consult or discuss with, provide
information to, or assist any Person, including any holder of phantom options in
the Company or any advisor or representative of any such holder, or make any
comment or offer or provide any opinion or otherwise make statements, concerning
the phantom options, or the grant, appreciation, value, or exercise thereof, or
any transaction or proposed transaction in respect of such phantom options,
including without limitation any planned or actual exchange offer by the Company
therefor, or any interpretation or action by the Company planned or actually
made with respect to such phantom options, or any claims or proceedings, whether
pending or threatened, relating to such phantom options, without the prior
written consent of the Chief Executive Officer of the Company, except and to the
extent compelled by law.
SECTION 3.05 OWNERSHIP OF WORKS. As between the Company and Executive,
the Company shall be the sole and exclusive owner, throughout the universe, in
perpetuity, of all right, title, interest, benefits and profits of every kind
and nature whatsoever, whether now known or unknown, in, to and from all
programs, financial or business plans, all non-generic ideas and concepts,
logos, discoveries, trade secrets, prospect lists, or other tangible work
product and materials (including, without limitation, tangible materials
containing market, financial and other research) of every kind and nature
whatsoever (collectively, the "Works") written, conceived, developed, furnished
or created by or under the auspices of Executive in connection with his
performance of duties as an employee of or consultant to the Company, and all
results, benefits and proceeds of such Works (all of such Works, results,
12
benefits and proceeds being collectively referred to as the "Materials"). All
of such Materials shall constitute a "work made for hire" for the Company within
the meaning of the United States Copyright Act of 1976, as amended. In the
event that the Materials or any portion thereof are for any reason whatsoever
not deemed to be a "work made for hire" for the Company, Executive hereby grants
and assigns to the Company all right, title, interest, benefits and profits of
every kind and nature whatsoever, whether now known or unknown, in, to and from
the Materials. As between the Company and Executive, the Company shall at all
times have the perpetual and exclusive right to exploit such Materials and all
works derived therefrom throughout the universe, and all revenues and other
benefits and profits derived by the Company from such exploitation, as between
the Company and Executive, shall be the sole and exclusive property of the
Company. Executive agrees to execute, and to cause each of his employees or
agents to execute, any and all formal assignments, recordations and any other
documents which the Company reasonably deems are necessary or desirable to
effectuate and/or evidence the Company's rights in and to the Materials.
SECTION 3.06 COOPERATION WITH LEGAL PROCESS. From and after Executive's
employment with the Company, the Company shall, consistent with the Company's
then existing policies for indemnification of officers, continue to indemnify
Executive for his activities as an officer, director and employee of the Company
to the extent provided under and permitted by, and subject to the provisions and
conditions of, law and the charter documents of the Company in effect at the
time, as though Executive remained an officer, director and/or employee of the
Company. In return, Executive agrees to provide reasonable cooperation and
assistance to the Company, when and as requested by the Company and without
charge to the Company except for the Executive's reasonable and bona fide out-
of-pocket costs (including reasonable attorney's fees and costs), in connection
with any and all pending or threatened claims, proceedings and investigations
(whether on behalf of or against the Company) arising out of, or alleged to
arise out of, facts or circumstances existing during the term of Executive's
employment by the Company. Should reasonable cooperation from Executive require
more than two (2) consecutive days in any two (2) month period, the Company will
provide Executive with reasonable compensation for such excess time actually
expended by Executive.
ARTICLE 4: GENERAL PROVISIONS
SECTION 4.01 OPPORTUNITY TO REVIEW WITH COUNSEL. Executive represents
that he has discussed all aspects of this Agreement with an attorney of his
choice, that he has carefully read and fully understands all of the provisions
of this Agreement and that he is voluntarily entering into this Agreement.
13
SECTION 4.02 CHOICE OF LAW. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of California, without
reference to the choice of law doctrine of California.
SECTION 4.03 REMEDIES. The rights and remedies of each party under this
Agreement are not, except as expressly provided herein to the contrary, to the
exclusion of each other or of any other rights or remedies of such party. Each
party may exercise or decline to exercise any one or more of its rights and
remedies without waiver of any such subsequent exercise of such right and remedy
or any other rights and remedies of such party. Executive acknowledges that the
Company cannot be properly protected from adverse consequences if Executive
should default under specified provisions of this Agreement. Accordingly, the
Executive agrees that in the event of any breach or threatened breach by
Executive of any of the provisions of Sections 3.01, 3.02, 3.04 or 3.05 of the
Agreement or of any warranty or representation in the Form of General Release or
the Form of Age Discrimination Release, the Company, in addition to any other
right or relief to which it may be entitled, shall be entitled to an order
enjoining such breach or threatened breach and specifically enforcing
Executive's compliance with the provisions thereof, Executive agreeing that he
is hereby estopped and prohibited from arguing that damages are an adequate
remedy for any such breach or threatened breach or that such equitable relief is
inappropriate under the circumstances.
SECTION 4.04 SEVERABILITY. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any law or
public policy, all other terms and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of the provisions hereof is not affected in any manner materially
adverse to any party. Upon such determination that any term or other provision
is invalid, illegal or incapable of being enforced, the parties hereto shall
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible in an acceptable manner in order
that the provisions hereof are implemented and enforced as originally
contemplated to the greatest extent possible.
SECTION 4.05 NO AMENDMENT; ENTIRE AGREEMENT; NO WAIVER. This Agreement
and the Schedules and attachments hereto constitute the entire agreement of the
parties with respect to the subject matter hereof and supersede all prior
agreements and undertakings, both written and oral, between the parties with
respect to the subject matter hereof. Without limiting the generality of the
foregoing, Executive specifically represents and acknowledges that in executing
this Agreement, he does not rely and has not relied on any representations or
statements made by the Company, or any of the Company's agents, representatives
or attorneys with regard to the subject matter, basis or effect of this
Agreement, or otherwise. This Agreement may not be amended except by an
instrument in writing signed by the parties. Either party may (a) extend the
time for the performance of any of the obligations or other acts of the other
party, or (b) waive compliance with any of the agreements applicable to the
other party contained herein. Any such extension or waiver shall be valid only
if set forth in an instrument in writing signed by the party to be
14
bound thereby. Any waiver of any term or condition shall not be construed as a
waiver of any subsequent breach or a subsequent waiver of the same term or
condition, or a waiver of any other term or condition, of this Agreement. The
failure of a party to assert any of its rights hereunder shall not constitute a
waiver of any of such right.
SECTION 4.06 RIGHT OF OFFSET. The Company shall have the right to offset
against amounts owed Executive by the Company (except for Deferral Plans and
Retirement Benefits) any amounts which, in the future, Executive owes to the
Company.
SECTION 4.07 PARTIES IN INTEREST. This Agreement may not be assigned or
transferred by either party, by operation of law or otherwise, without the prior
written consent of the other party (which consent may be granted or withheld in
the sole discretion of such other party). This Agreement shall be binding upon
and inure solely to the benefit of the parties and their permitted assigns and
nothing herein, express or implied, is intended to or shall confer upon any
other Person any legal or equitable right, benefit or remedy of any nature
whatsoever under or by reason of this Agreement.
SECTION 4.08 NOTICES. Any notice, payment, demand, or communication
required or permitted to be given by any provision of this Agreement shall be in
writing and shall be deemed to have been delivered, given, and received for all
purposes (a) if delivered personally to the Person to whom it is addressed, or
(b) when the same is actually received, if sent by a nationally recognized
courier service (which provides proof of delivery), by registered or certified
mail (postage and charges prepaid), or by facsimile (if such facsimile is
followed by a hard copy of the facsimile communication sent promptly thereafter
by a nationally recognized courier service (which provides proof of delivery) or
registered or certified mail (postage and charges prepaid)), addressed as set
forth in the Schedule of Addresses attached hereto and incorporated herein by
reference or to such other address as such Person may from time to time specify
by due notice.
SECTION 4.09 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, and by the Parties in separate counterparts, each of which when
executed shall be deemed to be an original but all of which taken together shall
constitute one and the same agreement.
SECTION 4.10 PUBLICITY. Executive represents that neither he nor his
representatives have communicated with any past, present or prospective employee
of the Company or any of its Affiliates concerning the amounts payable under
this Agreement and the parties agree that, for a period of at least six (6)
months, they will keep the terms, amounts and facts of this Agreement completely
confidential, and that they will not during such period disclose any information
concerning this Agreement to anyone except their respective attorneys or
accountants, including, but not limited to, any past, present or prospective
employees of the Company or any of its Affiliates, except in each case as may be
required by law, including, without limitation, filings required by the Company
and/or by the Parent with the Securities and Exchange Commission. The parties
agree that any press release by
15
the Company in respect of the end of Executive's employment with the Company
shall simply refer to the fact that Executive has resigned from the Company.
SECTION 4.11 HEADINGS. The descriptive headings contained in this
Agreement and table of contents of this Agreement are for convenience of
reference only and shall not affect in any way the meaning or interpretation of
this Agreement.
SECTION 4.12 ATTORNEYS FEES. In any litigation or proceeding relating to
this Agreement, the prevailing party shall be entitled to recover its costs and
reasonable attorney fees.
SECTION 4.13 FURTHER ASSURANCES. The parties agree to execute such
further instruments and perform such further acts as may be reasonably necessary
to carry out the intent and purposes of this Agreement.
SECTION 4.14 ADDITIONAL COVENANTS OF THE COMPANY. The Company agrees
that, for a period of two (2) years from the Effective Date, the Company and its
Affiliates will not publicly issue any press release that disparages, or
materially injures the business or reputation of, the Executive, and will make
reasonable efforts to prevent their executive officers and official
spokespersons from making public statements on behalf of the Company or its
Affiliates that are disparaging of Executive or materially injure his business
or reputation. The Company further agrees to exercise reasonable efforts to
cause personal mail addressed to Executive to be forwarded to him in a timely
fashion (Executive agreeing to make reasonable efforts to notify third parties
of the change in his business address).
SECTION 4.15 DISPUTE RESOLUTION. All disputes arising out of or relating
to this Agreement shall be resolved pursuant to the reference procedure set
forth in California Code of Civil Procedure 638 et seq. The parties hereby
agree to submit to the jurisdiction of the Superior Court of Los Angeles County
for such purpose. Each party hereby acknowledges that it is waiving any right
to a trial by jury. Either party may initiate the procedure set forth in this
Section by providing the other party with notice setting forth the nature of the
dispute. The parties shall designate to the Superior Court a referee who is an
active attorney or retired judge living in Los Angeles County who shall resolve
the dispute. If the parties are unable to designate a referee within 20 days
after the receipt of the original referral notice, the parties shall request
that the Superior Court appoint a referee. In connection with any proceeding
pursuant to this Section, the parties shall have all discovery rights which
would have been available had the matters which are the subject of the dispute
been decided by the Superior Court. Discovery proceedings may be noticed and
commenced immediately after delivery of the original referral notice. The
hearing before the referee shall begin no later than 60 days after the receipt
of such referral notice. All discovery in connection with the reference
procedure shall be concluded no later than 15 days prior to the commencement of
the hearing. Judgment upon the award rendered by the referee shall be entered
in the Superior Court. Nothing in this Section shall be construed to impair the
right of either party to appeal from such judgment.
16
SECTION 4.16 APPROVALS. The effectiveness and implementation of this
Agreement are subject to the approval of the Board of Directors of the Company
and, at the Company's election, the Compensation and Executive Personnel
Committee of the Board of Directors of the Parent.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first above written.
/s/ S Xxxx Xxxxxxxx
---------------------
X. Xxxx Xxxxxxxx
XXXXXX MISSION ENERGY
By:/s/ Xxxx X. Xxxxxx
---------------------
Title:Pres & CEO
------------------
By:
---------------------
Title:
------------------
17
SCHEDULE OF ADDRESSES
Notices to the Company and to the Parent shall be addressed as follows:
Chief Executive Officer
Edison Mission Energy
00000 Xxx Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxxxxxxx 00000-0000
FAX: 000-000-0000
Notices to the Executive shall be addressed as follows:
00 Xxxxxx Xxxx
Xxxxxx XX0 0 X X
Xxxxxx Xxxxxxx
FAX: 000-00000-000-0000
With a courtesy copy to:
Xxxxxx X. Xxxxxxxxx, Esq.
Xxxxxxxxx, Xxxxx & Xxxxxx
0000 Xxxxxxxx Xxxx., 0/xx/ Xxxxx
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
FAX: (000) 000-0000
SCHEDULE OF DEFERRED COMPENSATION*
Balance as of January 27, 2000:
Edison 401(k) Savings Plan and Profit Sharing U.S.$ 77,032
Balance as of January 31, 2000:
Executive Deferred Compensation Plan (EDCP) U.S.$588,652
Total U.S.$665,684
* Additional amounts, if any, arising from Profit Sharing amounts for
the 1999 year will be added in the ordinary course when calculated.
All benefits under these Plans are subject to the expressed terms of
the relevant Plans.
SCHEDULE OF OTHER TERMINATED BENEFITS*
Employee Life Insurance
Executive Incentive Compensation Plan
Long-Term Incentive Compensation Plan
Equity Compensation Plan
Affiliate Long Term Incentive Program
401(k) Savings Plan
Executive Deferred Compensation Plan
Option Gain Deferral Plan
Executive Retirement Plan
Retirement Plan
Estate and Financial Planning
Comprehensive Disability and Executive Disability Plan
Long-Term Disability
Dependent Life Insurance
Dependent AD&D Insurance
Dependent Care Reimbursement Account
Vacation
Vacation Buying and Selling
Holidays
Personal Use of Company Car/Auto Allowance/Driver
Executive Physical
Accidental Death and Dismemberment
24-Hour Business Travel Accident Insurance
Club Memberships
Health Care Reimbursement Account
Preventive Health Care Account
Employee Assistance Plan (EAP)
Retiree Health Care and Medicare
________________________
* Executive is entitled to any vested benefits and/or balances in any of the
above plans but will have no further entitlements under any of the plans
except as otherwise provided in this Agreement.
SCHEDULE OF RETIREMENT BENEFITS(1)(2)
Projected annual and lump-sum values(3)
Executive Retirement
Retirement Plan Plan
--------------- ----------
Annual Value of Life Annuity
----------------------------
Payment commencing April 1, 2002 N/A U.S.$6,420
Payment commencing July 1, 2002 U.S.$31,200 N/A
Lump Sum Value
--------------
As of March 1, 2000 N/A U.S.$84,000 (4)
As of July 1, 2002 U.S.$358,000 (4)(5) N/A
---------------------------
(1) All benefits under these Plans are subject to the express terms of the
relevant Plans.
(2) Benefit payment commencement on April 1, 2000 for the Retirement Plan and
July 1, 2002 (age 55) for the Executive Retirement Plan, assuming last
day of employment is during February 2000.
(3) Assumes Executive receives a bonus of 50% of base pay (125% of his target
bonus of 40%) for 1999.
(4) The annuity value of the Retirement Plan is determined as of the assumed
payment commencement date using a 6.07% interest rate. The lump sum for
the Executive Retirement Plan uses an interest rate of 7.33%.
(5) Lump-sum distributions are not available for those employees terminating
prior to age 55. This value is shown for illustrative purposes only.
SCHEDULE OF VESTED OPTIONS
-----------------------------------------------------
Date Grant Vesting Grant Vested
Grant Type Schedule Price Shares
-----------------------------------------------------
1/3/95 EME 3 $154.2317 19,890
1/2/96 EME 3 $181.0666 14,700
1/2/97 EME 3 $226.6772 9,900
1/4/98 EME 4 $313.8153 1,610
1/4/99 EME 4 $334.4392 1,150
------
Total 47,250
FORM OF GENERAL RELEASE
THIS GENERAL RELEASE ("Release") is being delivered as of February 5,
2000 by S. Xxxx Xxxxxxxx (the "Executive") to Edison Mission Energy, a
California corporation (the "Company"), pursuant to Section 2.07 of that certain
agreement related to Executive's employment with the Company being executed
concurrently herewith by Executive and the Company (the "Agreement"). All
capitalized terms not otherwise defined herein have the same meaning as is given
to them in the Agreement.
(a) Executive, on behalf of himself and his descendants, ancestors,
heirs, executors, successors, assigns and administrators (collectively,
"Releasor"), hereby releases, remises, acquits and forever discharges, and
agrees to indemnify and hold harmless, (x) the Company, (y) each of its
Affiliates, and (z) each of its and/or their partners, predecessors, successors,
assigns, officers, directors, shareholders, representatives, insurers,
attorneys, employees and agents, past, present and future, in their respective
capacities as such (collectively, "Releasees"), from and against any and all
claims, demands, obligations, causes of action, debts, expenses, damages,
judgments, orders and liabilities of whatever kind or nature, in law, equity or
otherwise, whether arising under the law of any jurisdiction in the United
States or of any foreign jurisdiction, whether now known or unknown, suspected
or unsuspected, matured or unmatured, and whether concealed or hidden
(collectively, "Claims"), which Executive now owns or holds or has at any time
heretofore owned or held or had, or may at any time own or hold or have, against
the Releasees or any of them, including, but not limited to any Claim arising
out of or in any way connected to any transactions, occurrences, acts or
omissions regarding or relating to his employment with the Company, or the end
of his employment with the Company, including, but not limited to, Claims
arising from any alleged violation by the Company of any federal, state or local
constitutions, statutes, ordinances or common laws, including but not limited
to, the California Fair Employment and Housing Act, Employee Retirement Income
Security Act, Americans With Disabilities Act and Title VII of the Civil Rights
Act of 1964 and/or the Civil Rights Act of 1991.
(b) Except for those matters that are expressly excluded, the
release set forth herein is intended as a release of all Claims that the
Releasor may have against the Releasees or any of them, whether now known or
unknown. In furtherance thereof, Executive expressly waives and relinquishes
any right to assert hereafter that any claim, demand, obligation and/or cause of
action has, through ignorance, oversight, error or otherwise, been omitted from
the terms of this Agreement. Executive makes this waiver with full knowledge of
his rights, after consulting with legal counsel, and with specific intent to
release both his known and unknown claims. Accordingly, Releasor specifically
waives all rights and benefits afforded by California Civil Code Section 1542
and does so understanding and acknowledging the significance of such specific
waiver of such statutory protection, which provides as follows:
1
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE
CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT
THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM
MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE
DEBTOR."
Thus, notwithstanding the foregoing provisions of the California Civil Code, and
for the purposes of implementing a full and complete release and discharge of
the Releasees, Executive expressly acknowledges that the foregoing release is
intended to include in its effect, without limitation, all Claims that Executive
does not know or suspect to exist in his favor at the time of the execution
hereof, and the foregoing release contemplates the extinguishment of any such
Claim or Claims except to the extent expressly set forth herein. Executive
further acknowledges that he has been advised to consult with an attorney and is
receiving compensation beyond that to which he is entitled. Executive
acknowledges that he has been advised by his counsel and hereby confirms that
his employment by the Company has been and is subject to California law.
(c) Executive represents and warrants that he has not filed or
caused to be filed any complaints, claim forms or charges against the Company,
any of its Affiliates or any of its or their officers, directors, agents,
employees or representatives with or before any local, state, federal or foreign
governmental agency or court or any arbitrator or other tribunal (including
without limitation, any Industrial Tribunal in England or Wales or English
Courts), and no such complaint or charge by or on behalf of the Executive is
currently pending. Executive further agrees not to file any complaints, claim
forms, actions or charges of any nature against the Releasees relating to any
event or alleged event including, but not limited to, those arising from
Executive's employment with and/or separation from employment with the Company,
which occurred from the beginning of time until the execution of this Release.
Executive acknowledges that the Company has expressly relied on Executive's
representation and warranty in this section in providing compensation and
benefits under Article 2 of the Agreement in excess of what he would be entitled
to in the absence of the Agreement. Accordingly, Executive acknowledges and
agrees that if he should file or pursue any such claim in violation of this
section, then the Company shall be entitled to injunctive relief against
Executive to prevent him from pursuing any such claim and/or to rescind the
Agreement and seek repayment of all such excess compensation and benefits.
(d) Nothing in this Release shall be construed or interpreted as a
release, acquittal, discharge or waiver of:
(i) Executive's rights to the compensation, reimbursements,
benefits and perquisites described in Article 2 of the Agreement;
(ii) Any of the Company's other obligations arising under the
Agreement;
2
(iii) Any right which Executive now has or may have to claim
indemnity (including advancement of expenses) for liabilities in connection
with his lawful activities as a director, officer or employee of the
Company and certain of its Affiliates, pursuant to the terms of any
applicable statute, under any insurance policy, pursuant to the certificate
or articles of incorporation, bylaws or similar charter documents of any
Releasee, or pursuant to the terms of any applicable indemnification
agreement to which Executive and the Company or any Affiliate of the
Company are or have been parties; or
(iv) Claims arising under the Federal Age Discrimination in
Employment Act.
(e) The provisions of Section 4.01 through 4.05, 4.07, 4.08, and
4.12 through 4.14 of the Agreement apply to this Release and are incorporated
herein by reference as though fully set forth hereat.
IN WITNESS WHEREOF, the Executive has executed and delivered this Release
as of the day and year first above written.
/s/ S. Xxxx Xxxxxxxx
______________________________________
S. Xxxx Xxxxxxxx
3
FORM OF AGE DISCRIMINATION RELEASE
THIS AGE DISCRIMINATION RELEASE ("Release") is being delivered as of
February 5, 2000 by S. Xxxx Xxxxxxxx (the "Executive") to Edison Mission Energy,
a California corporation (the "Company"), pursuant to Section 2.07 of that
certain agreement related to Executive's employment with the Company being
executed concurrently herewith by Executive and the Company (the "Agreement").
All capitalized terms not otherwise defined herein have the same meaning as is
given to them in the Agreement.
(a) Executive, on behalf of himself and his descendants, ancestors,
heirs, executors, successors, assigns and administrators (collectively,
"Releasor"), hereby releases, remises, acquits and forever discharges, and
agrees to indemnify and hold harmless, (x) the Company, (y) each of its
Affiliates, and (z) each of its and/or their partners, predecessors, successors,
assigns, officers, directors, shareholders, representatives, insurers,
attorneys, employees and agents, past, present and future, in their respective
capacities as such (collectively, "Releasees"), from and against any and all
claims, demands, obligations, causes of action, debts, expenses, damages,
judgments, orders and liabilities of whatever kind or nature, in law, equity or
otherwise, whether now known or unknown, suspected or unsuspected, matured or
unmatured, and whether concealed or hidden (collectively, "Claims"), which
Executive now owns or holds or has at any time heretofore owned or held or had,
or may at any time own or hold or have, against the Releasees or any of them,
arising out of or in any way connected to the Federal Age Discrimination in
Employment Act.
(b) Except for those matters that are expressly excluded, the
release set forth herein is intended as a release of all Claims that the
Releasor may have against the Releasees or any of them, whether now known or
unknown, arising under the Federal Age Discrimination in Employment Act. In
furtherance thereof, Executive expressly waives and relinquishes any right to
assert hereafter that any such claim, demand, obligation and/or cause of action
has, through ignorance, oversight, error or otherwise, been omitted from the
terms of this Agreement. Executive makes this waiver with full knowledge of his
rights, after consulting with legal counsel, and with specific intent to release
both his known and unknown claims. Accordingly, Releasor specifically waives
all rights and benefits afforded by California Civil Code Section 1542 and does
so understanding and acknowledging the significance of such specific waiver of
such statutory protection, which provides as follows:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE
CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT
THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM
MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE
DEBTOR."
1
Thus, notwithstanding the foregoing provisions of the California Civil Code, and
for the purposes of implementing a full and complete release and discharge of
the Releasees in respect of Claims arising under Federal Age Discrimination in
Employment Act, Executive expressly acknowledges that the foregoing release is
intended to include in its effect, without limitation, all Claims arising under
such Act that Executive does not know or suspect to exist in his favor at the
time of the execution hereof, and the foregoing release contemplates the
extinguishment of any such Claim or Claims except to the extent expressly set
forth herein. Executive acknowledges that he has been advised by his counsel
and hereby confirms that his employment by the Company has been and is subject
to California law.
(c) Executive acknowledges that as of the date hereof, he will have
had at least twenty-one (21) days to consider the terms of the release set forth
herein and that he has been advised that he has a period of seven (7) days
following his execution of this Release in which to revoke the entire release
granted hereby and that any such revocation must be in writing, signed by
Executive, and hand delivered to the Chairman of the Board of the Company prior
to the expiration of such seven (7) day period. Executive further acknowledges
that he has been advised to consult with an attorney and is receiving
compensation beyond that to which he is entitled.
(d) Executive represents and warrants that he has not filed or
caused to be filed any complaints or charges against the Company, any of its
Affiliates or any of its or their officers, directors, agents, employees or
representatives with or before any local, state or federal governmental agency
or court or any arbitrator or other tribunal arising under the Federal Age
Discrimination in Employment Act, and no such complaint or charge by or on
behalf of the Executive is currently pending. Executive further agrees not to
file any such complaints, actions or charges of any nature against the Releasees
relating to any event or alleged event including, but not limited to, those
arising from Executive's employment with and/or separation from employment with
the Company, which occurred from the beginning of time until the execution of
this Release. Executive acknowledges that the Company has expressly relied on
Executive's representation and warranty in this section in providing
compensation and benefits under Article 2 of the Agreement in excess of what he
would be entitled to in the absence of the Agreement. Accordingly, Executive
acknowledges and agrees that if he should file or pursue any such claim in
violation of this section, then the Company shall be entitled to injunctive
relief against Executive to prevent him from pursuing any such claim and/or to
rescind the Agreement and seek repayment of all such excess compensation and
benefits.
(e) Nothing in this Release shall be construed or interpreted as a
release, acquittal, discharge or waiver of:
(i) Executive's rights to the compensation, reimbursements,
benefits and perquisites described in Article 2 of the Agreement;
(ii) Any of the Company's other obligations arising under
the Agreement; or
2
(iii) Any right which Executive now has or may have to
claim indemnity (including advancement of expenses) for liabilities in
connection with his lawful activities as a director, officer or employee of
the Company and certain of its Affiliates, pursuant to the terms of any
applicable statute, under any insurance policy, pursuant to the certificate
or articles of incorporation, bylaws or similar charter documents of any
Releasee, or pursuant to the terms of any applicable indemnification
agreement to which Executive and the Company or any Affiliate of the
Company are or have been parties.
(f) The provisions of Section 4.01 through 4.05, 4.07, 5.08, and
4.12 through 4.14 of the Agreement apply to this Release and are incorporated
herein by reference as though fully set forth hereat.
IN WITNESS WHEREOF, the Executive has executed and delivered this Release
as of the day and year first above written.
/s/ S. Xxxx Xxxxxxxx
______________________________________
S. Xxxx Xxxxxxxx
3
