EXHIBIT 10.4
SEVERANCE AGREEMENT
THIS SEVERANCE AGREEMENT ("Agreement") is made and effective
as of the 11th day of August, 2003, by and between RELIANT RESOURCES, INC., a
Delaware corporation, (the "Company"), RELIANT ENERGY CORPORATE SERVICES, LLC, a
Delaware limited liability corporation and wholly owned subsidiary of the
Company (the "Employer") and Xxxx X. Staff ("Executive").
WHEREAS, the Company and the Employer consider it essential to
the best interests of the Company's stockholders to xxxxxx the continued
employment of key management personnel; and
WHEREAS, the key management personnel of the Company,
including Executive, are employed by the Employer; and
WHEREAS, the Board recognizes that, as is the case with many
publicly held corporations, the possibility of a Change of Control exists and
that such possibility, and the uncertainty and questions which it may raise
among management, may result in the departure or distraction of management
personnel to the detriment of the Company and its stockholders; and
WHEREAS, the Board has determined that appropriate steps
should be taken to reinforce and encourage the continued attention and
dedication of members of the Company's and the Employer's management to their
assigned duties without distraction in the face of potentially disturbing
circumstances arising from the possibility of a Change of Control;
NOW, THEREFORE, the Company, the Employer and Executive have
entered into this Agreement, on the terms and conditions hereinafter stated.
1. DEFINITIONS: The following terms shall have the meanings set
forth below.
"Affiliate" means any company controlled by, controlling or
under common control with the Company within the meaning of Section 414 of the
Internal Revenue Code of 1986, as amended (the "Code") and includes, without
limitation, the Employer.
"Board" means the board of directors of the Company.
"Cause" means Executive's (a) gross negligence in the
performance of Executive's duties, (b) intentional and continued failure to
perform Executive's duties, (c) intentional engagement in conduct which is
materially injurious to the Company or its Affiliates (monetarily or otherwise)
or (d) conviction of a felony, which, in the case of clauses (a), (b) or (c) has
not been cured within 30 days after a written demand for substantial performance
is delivered to Executive by the Board, which demand specifically identifies the
conduct which the Board asserts to constitute Cause. For purposes of the
definition of Cause, an act or failure to act on the part of Executive will be
deemed "intentional" only if done or omitted to be done by Executive not in good
faith and without reasonable belief that his/her action or omission was in the
best interest of the Company and its Affiliates, and no act or failure to act on
the part of
Executive will be deemed "intentional" if it was due primarily to an error in
judgment or negligence.
A "CHANGE OF CONTROL" shall be deemed to have occurred upon
the occurrence of any of the following events:
(a) 30% OWNERSHIP CHANGE: Any Person, other than an
ERISA- regulated pension plan established by the Company or an
Affiliate, makes an acquisition of Outstanding Voting Stock and is,
immediately thereafter, the beneficial owner of 30% or more of the then
Outstanding Voting Stock, unless such acquisition is made directly from
the Company in a transaction approved by a majority of the Incumbent
Directors; or any group is formed that is the beneficial owner of 30%
or more of the Outstanding Voting Stock; or
(b) BOARD MAJORITY CHANGE: Individuals who are Incumbent
Directors cease for any reason to constitute a majority of the members
of the Board; or
(c) MAJOR MERGERS AND ACQUISITIONS: Consummation of a
Business Combination unless, immediately following such Business
Combination, (i) all or substantially all of the individuals and
entities that were the beneficial owners of the Outstanding Voting
Stock immediately prior to such Business Combination beneficially own,
directly or indirectly, more than 70% of the then outstanding shares of
voting stock of the parent corporation resulting from such Business
Combination in substantially the same relative proportions as their
ownership, immediately prior to such Business Combination, of the
Outstanding Voting Stock, (ii) if the Business Combination involves the
issuance or payment by the Company of consideration to another entity
or its shareholders, the total fair market value of such consideration
plus the principal amount of the consolidated long-term debt of the
entity or business being acquired (in each case, determined as of the
date of consummation of such Business Combination by a majority of the
Incumbent Directors) does not exceed 50% of the sum of the fair market
value of the Outstanding Voting Stock plus the principal amount of the
Company's consolidated long-term debt (in each case, determined
immediately prior to such consummation by a majority of the Incumbent
Directors), (iii) no Person (other than any corporation resulting from
such Business Combination) beneficially owns, directly or indirectly,
30% or more of the then outstanding shares of voting stock of the
parent corporation resulting from such Business Combination and (iv) a
majority of the members of the board of directors of the parent
corporation resulting from such Business Combination were Incumbent
Directors of the Company immediately prior to consummation of such
Business Combination; or
(d) MAJOR ASSET DISPOSITIONS: Consummation of a Major
Asset Disposition unless, immediately following such Major Asset
Disposition, (i) individuals and entities that were beneficial owners
of the Outstanding Voting Stock immediately prior to such Major Asset
Disposition beneficially own, directly or indirectly, more than 70% of
the then outstanding shares of voting
stock of the Company (if it continues to exist) and of the entity that
acquires the largest portion of such assets (or the entity, if any,
that owns a majority of the outstanding voting stock of such acquiring
entity) and (ii) a majority of the members of the board of directors of
the Company (if it continues to exist) and of the entity that acquires
the largest portion of such assets (or the entity, if any, that owns a
majority of the outstanding voting stock of such acquiring entity) were
Incumbent Directors of the Company immediately prior to consummation of
such Major Asset Disposition.
For purposes of the foregoing definition,
(1) the term "Person" means an individual, entity or
group;
(2) the term "group" is used as it is defined for
purposes of Section 13(d)(3) of the Securities Exchange Act of 0000
(xxx "Xxxxxxxx Xxx");
(3) the term "beneficial owner" is used as it is defined
for purposes of Rule 13d-3 under the Exchange Act;
(4) the term "Outstanding Voting Stock" means outstanding
voting securities of the Company entitled to vote generally in the
election of directors; and any specified percentage or portion of the
Outstanding Voting Stock (or of other voting stock) shall be determined
based on the combined voting power of such securities;
(5) the term "Incumbent Director" means a director of the
Company (x) who was a director of the Company on the date first written
above or (y) who becomes a director subsequent to such date and whose
election, or nomination for election by the Company's shareholders, was
approved by a vote of a majority of the Incumbent Directors at the time
of such election or nomination, except that any such director shall not
be deemed an Incumbent Director if his or her initial assumption of
office occurs as a result of an actual or threatened election contest
or other actual or threatened solicitation of proxies by or on behalf
of a Person other than the Board;
(6) the term "election contest" is used as it is defined
for purposes of Rule 14a-11 under the Exchange Act;
(7) the term "Business Combination" means (x) a merger or
consolidation involving the Company or its stock or (y) an acquisition
by the Company, directly or through one or more subsidiaries, of
another entity or its stock or assets;
(8) the term "parent corporation resulting from a
Business Combination" means the Company if its stock is not acquired or
converted in the Business Combination and otherwise means the entity
which as a result of such Business Combination owns the Company or all
or substantially all the Company's assets either directly or through
one or more subsidiaries; and
(9) the term "Major Asset Disposition" means the sale or
other disposition in one transaction or a series of related
transactions of 70% or more of the assets of the Company and its
subsidiaries on a consolidated basis; and any specified percentage or
portion of the assets of the Company shall be based on fair market
value, as determined by a majority of the Incumbent Directors.
"COMPANY" means Reliant Resources, Inc., and, except for
purposes of determining whether a Change of Control has occurred, any successor
thereto.
"COVERED TERMINATION" means any termination of Executive's
employment with the Employer, the Company and their Affiliates during the term
of this Agreement that does not result from any of the following:
(i) death;
(ii) disability entitling Executive to benefits
under the Company's or the Employer's long-term disability
plan;
(iii) termination for Cause; or
(iv) termination by Executive.
Notwithstanding the foregoing, a Covered Termination shall also include a
termination by Executive for Good Reason that occurs following a Change of
Control.
"EMPLOYER" shall mean Reliant Energy Corporate Services, LLC.
"ERISA" shall mean the Employee Retirement Income Security Act
of 1974, as amended.
"GOOD REASON" shall mean any one or more of the following
which occurs following a Change of Control:
(a) a significant reduction in the duties or
responsibilities of Executive from those applicable to him/her
immediately prior to the date on which a Change of Control occurs;
(b) a reduction by the Employer or the Company in
Executive's annual base salary as in effect on the date hereof or as
the same may be increased from time to time;
(c) the failure by the Company or the Employer to
continue in effect any compensation plan in which Executive
participates immediately prior to the Change of Control which is
material to Executive's total compensation, unless an equitable
arrangement (embodied in an ongoing substitute or alternative plan) has
been made with respect to such plan, or the failure by the Company or
the Employer to continue Executive's participation therein (or in such
substitute or alternative plan) on a basis not materially less
favorable, both in terms of the
amount or timing of payment of benefits provided and the level of
Executive's participation relative to other participants, as existed
immediately prior to the Change of Control;
(d) the failure by the Company and the Employer to
continue to provide Executive with benefits substantially similar to
those enjoyed by Executive under any of the Company's (or the
Employer's) pension, savings, life insurance, medical, health and
accident, or disability plans in which Executive was participating
immediately prior to the Change of Control, the taking of any other
action by the Company or the Employer which would directly or
indirectly materially reduce any of such benefits or deprive Executive
of any material fringe benefit enjoyed by Executive at the time of the
Change of Control or the failure by the Company or the Employer to
provide Executive with paid vacation on the same basis as was
applicable to Executive immediately prior to the Change of Control; or
(e) a change in the location of Executive's principal
place of employment with the Employer or the Company by more than 50
miles from the location where Executive was principally employed
immediately prior to the date on which a Change of Control occurs or
the Company or the Employer requiring Executive to be based in a
location other than that of the Company's principal executive offices.
"SALARY" means Executive's base salary as in effect
immediately prior to the termination of his employment or, if higher, the base
salary in effect immediately prior to the first occurrence of an event or
circumstance constituting Good Reason.
"TARGET BONUS PERCENTAGE" means Executive's target incentive
award opportunity under the Reliant Resources, Inc. Annual Incentive
Compensation Plan (or any successor plan) in effect immediately prior to the
termination of his employment or, if higher, immediately prior to the first
event or circumstance constituting Good Reason.
"WAIVER AND RELEASE" means a legal document, in the form
attached hereto as Exhibit A or such other form as may be prescribed by the
Company, but which form may not be altered, amended or modified after execution
of a binding agreement to effect a Change of Control without the consent of
Executive.
"WELFARE BENEFIT COVERAGE" shall mean each of life insurance,
medical, dental and vision benefits.
2. SEVERANCE BENEFITS: If Executive (a) experiences a Covered
Termination, (b) executes and returns to the Company a Waiver and Release within
the time period prescribed in the Waiver and Release following the date of
Executive's Covered Termination, and (c) does not revoke such Waiver and Release
within the time period prescribed in the Waiver and Release, then Executive
shall be entitled to receive from the Employer, as additional compensation for
services rendered to the Company (including its Affiliates), the following
severance benefits:
(a) Cash Severance Payments: Executive will receive from
the Employer an amount equal to the product of (1) three and (2) the
sum of (a) the Salary and (b) the product of the Salary multiplied by
the Target Bonus Percentage, in one lump sum payment, within 15 days
after the expiration of the Waiver and Release revocation period.
(b) PRO RATED BONUS: Executive will receive from the
Employer an amount equal to the product of (1) the Salary and (2) the
Target Bonus Percentage, with the product of (1) and (2) prorated based
on the number of days Executive was employed during the bonus year in
which his employment terminated. Such bonus shall be paid within 15
days after the expiration of the Waiver and Release revocation period.
(c) WELFARE BENEFIT COVERAGE: The Employer will provide,
or will cause to be provided, continued Welfare Benefit Coverage for
Executive and his/her eligible dependents at the active employee rate
for a period of (1) 3 years following the date of Executive's Covered
Termination which occurs following a Change of Control or (2) 18 months
following any other Covered Termination. Such entitlement shall apply
only to those Welfare Benefit Coverages that the Company or the
Employer has in effect from time to time for active employees. If
Executive's employment is terminated following a Change of Control and
Executive would have become entitled to benefits under the Company's or
the Employer's post-retirement health care or life insurance plans, as
in effect immediately prior to the termination or of his employment
(or, if more favorable to Executive, as in effect immediately prior to
the first occurrence of an event or circumstance constituting Good
Reason), had Executive's employment terminated at any time during the
period of three years following the date upon which Executive's
employment was terminated, the Company or the Employer, as applicable,
shall provide such post-retirement health care or life insurance
benefits to Executive and Executive's dependents commencing on the
later of (i) the date on which such coverage would have first become
available and (ii) the date on which benefits described in the first
sentence of this paragraph 2(c) terminate. Benefits otherwise
receivable by Executive pursuant to this Section 2(c) shall be reduced
to the extent Executive becomes eligible to receive benefits pursuant
to a government-sponsored health insurance or health care program.
(d) OUTPLACEMENT: The Employer will provide reimbursement
for fees incurred for outplacement services within twenty four months
of the date of Executive's Covered Termination in connection with
Executive's efforts to obtain new employment, up to a maximum of
$100,000.
(e) FINANCIAL PLANNING: The Employer will provide, or
cause to be provided, continued access, for the remainder of the
calendar year in which the Covered Termination occurs or for 60 days
(if greater), to the financial planning services available to executive
employees at the time of Covered Termination.
3. CHANGE OF CONTROL EQUITY-BASED BENEFITS: Immediately upon any
Change of Control or, if earlier, immediately upon a Covered Termination,
Executive shall be entitled to receive, as additional compensation for services
rendered to the Company (including its Affiliates), benefits with respect to any
equity based compensation in accordance with the applicable plans and
agreements.
4. CERTAIN ADDITIONAL PAYMENTS: Anything in this Agreement to the
contrary notwithstanding, in the event it shall be determined that any payment
or distribution by the Company or the Employer to or for the benefit of
Executive (whether paid or payable or distributed or distributable pursuant to
the terms of this Agreement or otherwise, but determined without regard to any
additional payments required under this Section 4 (a "Payment")) would be
subject to the excise tax imposed by Section 4999 of the Code or any interest or
penalties incurred by Executive with respect to such excise tax (such excise
tax, together with any such interest and penalties, are hereinafter collectively
referred to as the "Excise Tax"), then Executive shall be entitled to receive an
additional payment (a "Gross-Up Payment") from the Employer in an amount such
that after payment (whether through withholding at the source or otherwise) by
Executive of all taxes (including any interest or penalties imposed with respect
to such taxes), including, without limitation, any income taxes (and any
interest and penalties imposed with respect thereto), employment taxes and
Excise Tax imposed upon the Gross-Up Payment, Executive retains an amount of the
Gross-Up Payment equal to the Excise Tax imposed upon the Payments.
Subject to the provisions of this Section 4, all
determinations required to be made under this Section 4, including whether and
when a Gross-Up Payment is required and the amount of such Gross-Up Payment and
the assumptions to be utilized in arriving at such determination, shall be made
by Deloitte & Touche (the "Accounting Firm") which shall provide detailed
supporting calculations both to the Employer and Executive within 15 business
days of the receipt of notice from Executive that there has been a Payment, or
such earlier time as is requested by the Employer. In the event that the
Accounting Firm is serving as accountant or auditor for the individual, entity
or group effecting the Change of Control, Executive may appoint another
nationally recognized accounting firm to make the determinations required
hereunder (which accounting firm shall then be referred to as the Accounting
Firm hereunder). All fees and expenses of the Accounting Firm shall be borne
solely by the Employer. Any Gross-Up Payment, as determined pursuant to this
Section 4, shall be paid by the Employer to Executive within five days of the
receipt of the Accounting Firm's determination. If the Accounting Firm
determines that no Excise Tax is payable by Executive, it shall furnish
Executive with a written opinion that failure to report the Excise Tax on
Executive's applicable federal income tax return would not result in the
imposition of negligence or similar penalty. Any determination by the Accounting
Firm shall be binding upon the Company, the Employer and Executive. As a result
of the uncertainty in the application of Section 4999 of the Code at the time of
the initial determination by the Accounting Firm hereunder, it is possible that
Gross- Up Payments which will not have been made by the Employer should have
been made ("Underpayment"), consistent with the calculations required to be made
hereunder. In the event that the Employer exhausts its remedies pursuant to the
following provisions of this Section 4 and Executive thereafter is required to
make a payment of any Excise Tax, the Accounting Firm shall determine the amount
of the Underpayment that has occurred and any such Underpayment shall be
promptly paid by the Employer to or for the benefit of Executive.
Executive shall notify the Employer in writing of any claim by
the Internal Revenue Service that, if successful, would require the payment by
the Employer of the Gross-Up Payment. Such notification shall be given as soon
as practicable but no later than ten business days after Executive is informed
in writing of such claim and shall apprise the Employer of the nature of such
claim and the date on which such claim is requested to be paid. Executive shall
not pay such claim prior to the expiration of the 30-day period following the
date on which it gives such notice to the Employer (or such shorter period
ending on the date that any payment of taxes with respect to such claim is due).
If the Employer notifies Executive in writing prior to the expiration of such
period that it desires to contest such claim, Executive shall:
(a) give the Employer any information reasonably
requested by the Employer relating to such claim;
(b) take such action in connection with contesting such
claim as the Employer shall reasonably request in writing from time to
time, including, without limitation, accepting legal representation
with respect to such claim by an attorney reasonably selected by the
Employer;
(c) cooperate with the Employer in good faith in order to
effectively contest such claim; and
(d) permit the Employer to participate in any proceedings
relating to such claim;
provided, however, that the Employer shall bear and pay directly all costs and
expenses (including additional interest and penalties) incurred in connection
with such contest and shall indemnify and hold Executive harmless, on an
after-tax basis, for any Excise Tax, employment tax or income tax (including
interest and penalties with respect thereto) imposed as a result of such
representation and payment of costs and expenses. Without limitation of the
foregoing provisions of this Section 4, the Employer shall control all
proceedings taken in connection with such contest and, at its sole option, may
pursue or forgo any and all administrative appeals, proceedings, hearings and
conferences with the taxing authority in respect of such claim and may, at its
sole option, either direct Executive to pay the tax claimed and xxx for a refund
or contest the claim in any permissible manner, and Executive agrees to
prosecute such contest to a determination before any administrative tribunal, in
a court of initial jurisdiction and in one or more appellate courts, as the
Employer shall determine; provided, however, that if the Employer directs
Executive to pay such claim and xxx for a refund, the Employer shall advance the
amount of such payment to Executive, on an interest-free basis and shall
indemnify and hold Executive harmless, on an after-tax basis, from any Excise
Tax, employment tax or income tax (including interest or penalties with respect
thereto) imposed with respect to such advance or with respect to any imputed
income with respect to such advance; and further provided that any extension of
the statute of limitations relating to payment of taxes for the taxable year of
Executive with respect to which such contested amount is claimed to be due is
limited solely to such contested amount. Furthermore, the Employer's control of
the contest shall be limited to issues with respect to which a Gross-Up Payment
would be payable hereunder and Executive shall be entitled to settle or contest,
as the case may be, any other issue raised by the Internal Revenue Service or
any other taxing authority.
If, after the receipt by Executive of an amount advanced by
the Employer pursuant to the foregoing provisions of this Section 4, Executive
becomes entitled to receive any refund with respect to such claim, Executive
shall (subject to the Employer complying with the requirements of this Section
4) promptly pay to the Employer the amount of such refund (together with any
interest paid or credited thereon after taxes applicable thereto). If, after the
receipt by Executive of an amount advanced by the Employer pursuant to the
foregoing provisions of this Section 4, a determination is made that Executive
shall not be entitled to any refund with respect to such claim and the Employer
does not notify Executive in writing of its intent to contest such denial of
refund prior to the expiration of 30 days after such determination, then such
advance shall be forgiven and shall not be required to be repaid and the amount
of such advance shall offset, to the extent thereof, the amount of Gross-Up
Payment required to be paid.
If the Company or the Employer are obligated to provide
Executive with one or more Welfare Benefit Coverages pursuant to Section 2(c),
and the amount of such benefits or the value of such benefit coverage (including
without limitation any insurance premiums paid by the Company or the Employer to
provide such benefits) is subject to any income, employment or similar tax
imposed by federal, state or local law, or any interest or penalties with
respect to such tax (such tax or taxes, together with any such interest and
penalties, being hereafter collectively referred to as the "Income Tax") because
such benefits cannot be provided under a nondiscriminatory health plan described
in Section 105 of the Code or for any other reason, the Employer will pay to
Executive an additional payment or payments (collectively, an "Income Tax
Payment"). The Income Tax Payment will be in an amount such that, after payment
by Executive of all taxes (including any interest or penalties imposed with
respect to such taxes), Executive retains an amount of the Income Tax Payment
equal to the Income Tax imposed with respect to such welfare benefits or such
welfare benefit coverage.
5. LEGAL FEES AND EXPENSES: It is the intent of the Company and
the Employer that Executive not be required to incur legal fees and the related
expenses associated with the interpretation, enforcement or defense of
Executive's rights under this Agreement by litigation or otherwise because the
cost and expense thereof would detract from the benefits intended to be extended
to Executive hereunder. Accordingly, if it should appear to Executive that the
Company or the Employer have failed to comply with any of their obligations
under this Agreement or in the event that the Company or the Employer or any
other person takes or threatens to take any action to declare this Agreement
void or unenforceable, or institutes any litigation or other action or
proceeding designed to deny, or to recover from, Executive the benefits provided
or intended to be provided to Executive hereunder, the Employer irrevocably
authorizes Executive from time to time to retain counsel of Executive's choice,
at the expense of the Employer as hereafter provided, to advise and represent
Executive in connection with any such interpretation, enforcement or defense,
including without limitation the initiation or defense of any litigation or
other legal action, whether by or against the Company, the Employer or any
director, officer, stockholder or other person affiliated with the Company or
the Employer, in any jurisdiction. Notwithstanding any existing or prior
attorney-client relationship between the Company or the Employer and such
counsel, the Company and the Employer irrevocably consent to Executive entering
into an attorney-client relationship with such counsel, and in that connection
the Company, the Employer and Executive agree that a confidential relationship
will exist between Executive and such counsel. Without regard to whether
Executive prevails, in whole or in part, in connection with any of the
foregoing, the Employer will pay and be solely
financially responsible for any and all attorneys' fees and related expenses
incurred by Executive in connection with any of the foregoing except to the
extent that a final judgment no longer subject to appeal finds that a claim or
defense asserted by Executive was frivolous. In such a case, the portion of such
fees and expenses incurred by Executive as a result of such frivolous claim or
defense shall become Executive's sole responsibility and any funds advanced by
the Company or by a trust created to secure such payment shall be repaid.
In the event a Change of Control occurs, the performance of
the Employer's obligations under this Section 5 will be funded by amounts
deposited or which may be deposited in trust pursuant to certain trust
agreements to which the Company or the Employer may be a party providing that
the fees and expenses of counsel selected from time to time by Executive
pursuant to this Section 5 will be paid, or reimbursed to Executive if paid by
Executive, either in accordance with the terms of such trust agreements, or, if
not so provided, on a regular, periodic basis upon presentation by Executive to
the Employer or to the trustee of a statement or statements prepared by such
counsel in accordance with its customary practices. In order to be eligible for
payment of expenses directly from the Employer, Executive must first exhaust all
rights to payment under the trust agreements, if any, contemplated immediately
above. The pendency of a claim by the Employer that a claim or defense of
Executive is frivolous or otherwise lacking merit shall not excuse the Employer
(or the trustee of a Trust contemplated by this Section 5) from making periodic
payments of legal fees and expenses until a final judgment is rendered as
hereinabove provided. Any failure by the Employer to satisfy any of its
obligations under this Section 5 will not limit the rights of Executive
hereunder. Subject to the foregoing (and to the provisions of Section 14),
Executive will have the status of a general unsecured creditor of the Employer
and will have no right to, or security interest in, any assets of the Company,
the Employer or any Affiliate.
6. CONFIDENTIALITY: Executive acknowledges that pursuant to this
Agreement, the Company agrees to provide to him Confidential Information
regarding the Company and the Company's business and has previously provided him
other such Confidential Information. In return for this and other consideration
provided under this Agreement, Executive agrees that he will not, while employed
by the Company or the Employer and thereafter, disclose or make available to any
other person or entity, or use for his own personal gain, any Confidential
Information, except for such disclosures as required in the performance of his
duties hereunder as may otherwise be required by law or legal process (in which
case Executive and shall notify the Company of such legal or judicial proceeding
as soon as practicable following his receipt of notice of such a proceeding, and
permit the Company to seek to protect its interests and information). For
purposes of this Agreement, "Confidential Information" shall mean any and all
information, data and knowledge that has been created, discovered, developed or
otherwise become known to the Company or any of its Affiliates or ventures or in
which property rights have been assigned or otherwise conveyed to the Company or
any of its Affiliates or ventures, which information, data or knowledge has
commercial value in the business in which the Company or any of its Affiliates
or ventures is engaged, except such information, data or knowledge as is or
becomes known to the public without violation of the terms of this Agreement. By
way of illustration, but not limitation, Confidential Information includes
business trade secrets, secrets concerning the Company's or any of its
Affiliates or ventures plans and strategies, nonpublic information concerning
material market opportunities, technical trade secrets, processes, formulas,
know-how, improvements, discoveries, developments,
designs, inventions, techniques, marketing plans, manuals, records of research,
reports, memoranda, computer software, strategies, forecasts, new products,
unpublished financial information, projections, licenses, prices, costs, and
employee, customer and supplier lists or parts thereof.
7. RETURN OF PROPERTY: Executive agrees that at the time of
leaving the Company's or the Employer's employ, he will deliver to the Employer
(and will not keep in his possession, recreate or deliver to anyone else) all
Confidential Information as well as all other devices, records, data, notes,
reports, proposals, lists, correspondence, specifications, drawings, blueprints,
sketches, materials, equipment, customer or client lists or information, or any
other documents or property (including all reproductions of the aforementioned
items) belonging to the Company or any of its Affiliates or ventures, regardless
of whether such items were prepared by Executive.
8. NON-SOLICITATION AND NON-COMPETITION:
(a) For consideration provided under this Agreement,
including but not limited to the Company's agreement to provide
Executive with Confidential Information regarding the Company and the
Company's business, Executive agrees that while employed by the Company
or the Employer and for one year following a Covered Termination that
does not occur following a Change of Control, he shall not, without the
prior written consent of the Company, directly or indirectly, (i) hire
or induce, entice or solicit (or attempt to induce entice or solicit)
any employee of the Company or any of its Affiliates or ventures to
leave the employment of the Company or any of its Affiliates or
ventures or (ii) solicit or attempt to solicit the business of any
customer or acquisition prospect of the Company or any of its
Affiliates or ventures with whom Executive had any actual contact while
employed at the Company, the Employer or any Affiliate.
(b) Additionally, for consideration provided under this
Agreement, including but not limited to the Company's agreement to
provide Executive with Confidential Information regarding the Company
and the Company's business, Executive agrees that while employed by the
Company or the Employer and for one year following a Covered
Termination that does not occur following a Change of Control, he will
not, without the prior written consent of the Company, acting alone or
in conjunction with others, either directly or indirectly, engage in
any business that is in competition with the Company or any of its
Affiliates or ventures or accept employment with or render services to
such a business as an officer, agent, employee, independent contractor
or consultant, or otherwise engage in activities that are in
competition with the Company or any of its Affiliates or ventures.
(c) The restrictions contained in this Paragraph 8 are
limited to a 50- mile radius around any geographical area in which the
Company or any of its Affiliates or ventures engages (or has definite
plans to engage) in operations or the marketing of its products or
services at the time of a Covered Termination.
(d) Executive acknowledges that these restrictive
covenants under this Agreement, for which Executive received valuable
consideration from the Company as provided in this Agreement, including
but not limited to the Company's agreement to provide Executive with
Confidential Information regarding the Company and the Company's
business are ancillary to otherwise enforceable provisions of this
Agreement that the consideration provided by the Company gives rise to
the Company's interest in restraining Executive from competing and that
the restrictive covenants are designed to enforce Executive's
consideration or return promises under this Agreement. Additionally,
Executive acknowledges that these restrictive covenants contain
limitations as to time, geographical area, and scope of activity to be
restrained that are reasonable and do not impose a greater restraint
than is necessary to protect the goodwill or other legitimate business
interests of the Company, including but not limited to the Company's
need to protect its Confidential Information.
9. NOTICES: For purposes of this Agreement, notices and all other
communications provided for herein shall be in writing and shall be deemed to
have been duly given when personally delivered or when mailed by United States
registered or certified mail, return receipt requested, postage prepaid,
addressed as follows:
If to Company or the Employer: Reliant Resources, Inc.
0000 Xxxx Xxxxxx
Xxxxxxx, Xxxxx 00000
ATTENTION: Chairman of the
Board
If to Executive: Xxxx X. Staff
0 Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000
or to such other address as either party may furnish to the other in writing in
accordance herewith, except that notices of changes of address shall be
effective only upon receipt.
10. APPLICABLE LAW: The validity, interpretation, construction and
performance of this Agreement will be governed by and construed in accordance
with the substantive laws of the State of Texas, including the Texas statute of
limitations, but without giving effect to the principles of conflict of laws of
such State.
11. SEVERABILITY: If a court of competent jurisdiction determines
that any provision of this Agreement is invalid or unenforceable, then the
invalidity or unenforceability of that provision shall not affect the validity
or enforceability of any other provision of this Agreement and all other
provisions shall remain in full force and effect.
12. WITHHOLDING OF TAXES: The Company or the Employer, as
applicable, may withhold from any payments payable under this Agreement all
federal, state, city or other taxes as may be required pursuant to any law or
governmental regulation or ruling.
13. No ASSIGNMENT; SUCCESSORS: Executive's right to receive
payments or benefits hereunder shall not be assignable or transferable, whether
by pledge, creation or a security interest or otherwise, whether voluntary,
involuntary, by operation of law or otherwise, other than a transfer by will or
by the laws of descent or distribution, and in the event of any attempted
assignment or transfer contrary to this Section 13 the Company shall have no
liability to pay any amount so attempted to be assigned or transferred. This
Agreement shall inure to the benefit of and be enforceable by Executive's
personal or legal representatives, executors, administrators, successors, heirs,
distributees, devisees and legatees.
This Agreement shall be binding upon and inure to the benefit
of the Company and the Employer and their successors and assigns (including,
without limitation, any company into or with which the Company may merge or
consolidate).
14. PAYMENT OBLIGATIONS ABSOLUTE: Except for the requirement of
Executive to execute and return to the Company the Waiver and Release in
accordance with Section 2, the Company's and the Employer's obligation to pay
Executive the amounts and to make the arrangements provided herein shall be
absolute and unconditional and shall not be affected by any circumstances,
including, without limitation, any set-off, counter-claim, recoupment, defense
or other right which the Company or the Employer (including their Affiliates)
may have against him/her or anyone else. All amounts payable by the Company or
the Employer (including its Affiliates hereunder) shall be paid without notice
or demand. Executive shall not be obligated to sign an agreement not to compete
with the Company in addition to that set forth in Section 8 or to seek other
employment in mitigation of the amounts payable or arrangements made under any
provision of this Agreement, and the obtaining of any other employment shall in
no event effect any reduction of the Company's or the Employer's obligations to
make (or cause to be made) the payments and arrangements required to be made
under this Agreement. In the event that the Employer fails to pay any amount or
provide any benefit required to be made or provided by the terms of this
Agreement, the Company shall be required to make such payment or provide such
benefit, as the case may be, under the same terms and conditions that were
applicable to the Employer.
15. NUMBER AND GENDER: Wherever appropriate herein, words used in
the singular shall include the plural and the plural shall include the singular.
The masculine gender where appearing herein shall be deemed to include the
feminine gender.
16. CONFLICTS: This Agreement constitutes the entire understanding
of the parties with respect to its subject matter and supercedes any other
agreement or other understanding, whether oral or written, express or implied,
between them concerning, related to or otherwise in connection with, the subject
matter hereof.
17. TERM: The effective date of the Agreement is August 11, 2003.
This Agreement shall remain in effect until January 14, 2006. Thereafter, on
each January 14, the term shall be extended automatically for an additional
one-year period unless the Company shall have delivered to Executive written
notice of non-renewal prior to the applicable anniversary. Upon the occurrence
of a Change of Control, the term shall be automatically extended to a date which
is three years from the date upon which the Change of Control occurs. If
Executive's employment is terminated prior to the occurrence of a Change of
Control this Agreement shall
immediately terminate, except that terms of this Agreement, which must survive
the termination this Agreement in order to be effectuated (including the
provisions of Sections 2, 5, 6, 7 and 8) shall survive.
IN WITNESS WHEREOF, the parties have caused this Agreement to
be executed and delivered this____________day of_______________________2003, but
effective as of the day and year first above written.
RELIANT RESOURCES, INC.
By /s/ Xxxxx X. Xxxxxxx
--------------------------------
Xxxxx X. Xxxxxxx
Executive Vice President and
Chief Administrative Officer
RELIANT ENERGY CORPORATE SERVICES, LLC
By. /s/ Xxxxx X. Xxxxxxx
--------------------------------------
Xxxxx X. Xxxxxxx
Executive Vice President and
Chief Administrative Officer
EXECUTIVE
/s/ Xxxx X. Staff
------------------------------------------
Xxxx X. Staff
EXHIBIT A
WAIVER AND RELEASE
In exchange for the payment to me of the severance benefits
described in Section 2 of the Severance Agreement between Reliant Resources,
Inc. (the "Company"), Reliant Energy Corporate Services, LLC (the "Employer")
and me effective as of ______________________, 200____ (the "Agreement") and of
other remuneration and consideration provided for in the Agreement (the
"Benefits"), which is in addition to any remuneration or benefits to which I am
already entitled, I agree not to xxx and to release and forever discharge the
Company, the Employer and all of their respective parents, subsidiaries,
affiliates and unincorporated divisions, and its or their respective officers,
directors, agents, servants, employees, successors, assigns, insurers, employee
benefit plans and fiduciaries, and agents of any of the foregoing (collectively,
the "Corporate Group") from any and all damages, losses, causes of action,
expenses, demands, liabilities, and claims on behalf of myself, my heirs,
executors, administrators, and assigns with respect to all matters relating to
or arising out of my employment with or separation from the Company, under any
employee benefit plan or claims for indemnity arising as a result of my being an
officer or fiduciary of the Corporate Group. The release does not apply to
claims or causes of action accruing after the date hereof.
I ACKNOWLEDGE THAT SIGNING THIS WAIVER AND RELEASE IS AN
IMPORTANT LEGAL ACT AND THAT I HAVE BEEN ADVISED IN WRITING TO CONSULT AN
ATTORNEY PRIOR TO EXECUTION. I ALSO UNDERSTAND THAT, IN ORDER TO BE ELIGIBLE FOR
THE BENEFITS, I MUST SIGN AND RETURN THIS WAIVER AND RELEASE TO THE COMPANY'S
GENERAL COUNSEL. I ACKNOWLEDGE THAT I HAVE BEEN GIVEN AT LEAST 21 DAYS TO
CONSIDER WHETHER TO EXECUTE THIS WAIVER AND RELEASE.
In exchange for the payment to me of the Benefits, which is in
addition to any remuneration or benefits to which I am already entitled, (1)1
agree not to xxx in any local, state or federal court regarding or relating in
any way to my employment with or separation from the Company, the Employer or
any member of the Corporate Group, and (2) I knowingly and voluntarily waive all
claims and release the Corporate Group from any and all claims, demands,
actions, liabilities, and damages, whether known or unknown, arising out of or
relating in any way to my employment with or separation from the Company, the
Employer or any member of the Corporate Group, except to the extent that my
rights are vested under the terms of employee benefit plans sponsored by the
Corporate Group, rights described in the Agreement, claims for indemnity from
the Corporate Group arising as a result of being an officer or fiduciary of the
Corporate Group, and except with respect to such rights or claims as may arise
after the date this Waiver and Release is executed. Except for the matters
identified above that are not the subject of this Waiver and Release, this
Waiver and Release includes, but is not limited to, claims and causes of action
under: Title VII of the Civil Rights Act of 1964, as amended; the Age
Discrimination in Employment Act of 1967, as amended, including the Older
Workers Benefit Protection Act of 1990; the Civil Rights Act of 1866, as
amended; the Civil Rights Act of 1991; the Americans with Disabilities Act of
1990; the Energy Reorganization Act, as amended, 42 U.S.C. Section 5851; the
Workers Adjustment and Retraining Notification Act of 1988; the Pregnancy
- 1 -
Discrimination Act of 1978; the Employee Retirement Income Security Act of 1974,
as amended; the Family and Medical Leave Act of 1993; the Fair Labor Standards
Act; the Occupational Safety and Health Act; the Texas Labor Code Section 21.001
et. seq.; the Texas Labor Code; the Xxxxxxxx-Xxxxx Act of 2002; claims in
connection with workers' compensation or "whistle blower" statutes; and claims
for breach of contract (whether written or oral, expressed or implied), tort,
personal injury, defamation, negligence or wrongful termination; and any other
claims under the statutory, regulatory, administrative, constitutional or common
law of any nation, state, locality or any other jurisdiction.
Further, I expressly represent that no promise or agreement
which is not expressed in this Waiver and Release has been made to me in
executing this Waiver and Release, and that I am relying on my own judgment in
executing this Waiver and Release, and that I am not relying on any statement or
representation of any member of the Corporate Group or any of their agents. I
agree that this Waiver and Release is valid, fair, adequate and reasonable, is
with my full knowledge and consent, was not procured through fraud, duress or
mistake and has not had the effect of misleading, misinforming or failing to
inform me. I acknowledge and agree that the Company or the Employer, as
applicable, will withhold any taxes required by federal or state law from the
Benefits otherwise payable to me.
I understand that for a period of seven calendar days
following the Company's receipt of this Waiver and Release executed by me, I may
revoke my acceptance of the offer of the Benefits by delivering a written
statement to the Company's General Counsel, by hand or by registered-mail, in
which case the Waiver and Release will not become effective. In the event I
revoke my acceptance of this offer, the Company and the Employer shall have no
obligation to provide me the Benefits. I understand that failure to revoke my
acceptance of the offer within seven days after the date I sign this Waiver and
Release will result in this Waiver and Release being permanent and irrevocable.
I agree that the terms of this Waiver and Release are
CONFIDENTIAL and that any disclosure to anyone for any purpose whatsoever except
as required by law by me or my agents, representatives, heirs, spouse, employees
or spokespersons shall be a breach of this Waiver and Release.
I agree that this Waiver and Release is valid. I agree that
this Waiver and Release is fair, adequate and reasonable. I agree that my
consent to this Waiver and Release was with my full knowledge and was not
procured through fraud, duress or mistake.
I acknowledge that payment of the Benefits is not an admission
by any member of the Corporate Group that they engaged in any wrongful or
unlawful act or that any member of the Corporate Group violated any law or
regulation. I understand that nothing in this Waiver and Release is intended to
prohibit, restrict or otherwise discourage me from engaging in any activity
related to matters of public or employee health or safety, specifically to
include activity protected under 42 U.S.C. Section 5851 and 10 C.F.R. Section
50.7, including, but not limited to, providing information to the Nuclear
Regulatory Commission ("NRC") regarding nuclear safety or quality concerns,
potential violations or other matters within the NRC's jurisdiction. Similarly,
nothing herein is intended to prohibit, restrict or otherwise discourage me or
any other individual from making reports of unsafe, wrongful or illegal conduct
to any agency or branch of the local, state
or federal government, including law enforcement authorities, public utility
commissions, energy regulatory commissions or any other lawful authority.
I understand and agree that in the event of any breach of the
provisions of Sections 6 or 8 of the Agreement, or threatened breach, by me, the
Company or the Employer, in their discretion, may initiate appropriate action as
provided in those Sections and may recover all lawful damages which it may prove
by a preponderance of the evidence in accordance with the law specified in those
Sections.
I acknowledge that this Waiver and Release set forth the
entire understanding and agreement between me, the Company and the Employer
concerning the subject matter of this Waiver and Release and supersedes any
prior or contemporaneous oral and/or written agreements or representations, if
any, between me, the Company, the Employer or any other member of the Corporate
Group. The invalidity or enforceability of any provisions hereof shall in no way
affect the validity or enforceability of any other provision.
______________________________________
Name
______________________________________
Social Security Number
______________________________________
Signature Date
