EXHIBIT 10.3
SETTLEMENT AGREEMENT
THIS SETTLEMENT AGREEMENT (the "Agreement") made and entered into
effective as of June 26, 2000 (the "Effective Date"), by and between EEX
Corporation, a Texas corporation and Xxxxxx Xxxxxxxx (the "Executive");
W I T N E S S E T H:
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WHEREAS, the Executive and the Company are parties to that certain
Employment Agreement (the "Employment Agreement"), effective as of October 15,
1997, and
WHEREAS, the Executive desires to terminate her service as an employee
effective June 30, 2000, and to resign from her positions as Senior Vice
President, Legal and Human Resources, General Counsel and Corporate Secretary of
the Company; and
WHEREAS, the Executive and the Company desire to fully and finally
settle all claims of any kind against the other; and
WHEREAS, in consideration of the mutual promises contained herein, the
parties hereto are willing to enter into this Agreement upon the terms and
conditions herein set forth.
NOW, THEREFORE, in consideration of the premises, the terms and
provisions set forth herein, the mutual benefits to be gained by the performance
thereof and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto agree as follows:
1. Resignation of Employment: Effective as of June 30, 2000 (the
"Termination Date"), the Executive resigns her positions as Senior Vice
President, Legal and Human Resources, General Counsel and Corporate Secretary of
the Company, and from any other position or office relating to the affairs of
the Company and its subsidiaries.
2. Cancellation of Contract: Except as explicitly provided herein,
the Company and the Executive agree that the rights and obligations of both
parties under the Employment Agreement are hereby cancelled, and that neither
party shall have any further rights or claims under such agreement. The Company
shall pay or cause to be paid to the Executive, as consideration for the
cancellation of the Employment Agreement and the release contained herein, a
payment of $1,400,000.00 (one million four hundred thousand dollars), such
amount to be wired to the Executive on or before the Termination Date to Chase
Manhattan Bank, ABA No. 000000000 for credit to National Financial Services
Corporation, Account No. 066196-221 for the benefit of the Executive's Account
No. X11-042927. The parties hereby agree that, in accordance with Revenue Ruling
58-301, 1958-1 C.B. 23, the payment made to the Executive pursuant to this
Section 2 as consideration for the cancellation of her Employment Agreement and
for the release contained herein is not subject to the federal employment and
income tax withholding provisions of Section 3121 of the Federal Insurance
Contributions Act or Section 3402 of the Internal Revenue Code of 1986, as
amended.
3. Additional Payments and Benefits Upon Separation:
(a) On or before the Termination Date, the Company shall pay to the
Executive the following amounts:
(i) the Executive's full base salary through the Termination
Date;
(ii) reimbursement for any work-related expenses incurred by
the Executive prior to the Termination Date;
(iii) the value of the Executive's accrued vacation time as
of the Termination Date; and
(iv) an amount equal to the legal fees incurred by the
Executive in connection with the negotiation and
preparation of this Agreement, as reflected on an
invoice from the Executive's counsel delivered to the
Company.
In addition, the Company agrees to cause the administrator of the Company's
401(k) Plan to transfer, by separate check, the amount of Executive's 401(k)
account to Chase Manhattan Bank, ABA No. 000000000 for credit to National
Financial Services Corporation, Account No. 066196-221 for the benefit of the
Executive's Account No. 111049298, which is an XXX maintained by the Executive.
(b) For a period of three years following the Termination Date (the
"Continuation Period"), the Executive and her dependent shall be entitled to
continued participation in, and the Company shall be required to maintain for
the Executive's (and the Executive's dependent's) benefit, all life, health,
accident and disability insurance plans and programs in which the Executive or
her dependent participated as of June 1, 2000. The Continuation Period shall not
be applied toward the COBRA continuation coverage period, which shall begin at
the end of the Continuation Period. At the end of the Continuation Period, the
Executive may elect to have assigned to her without any cost or apportionment of
prepaid premiums, any assignable insurance policy owned by the Company and
relating specifically to the Executive. In the event that the Executive's and/or
the Executive's dependent's continued participation in any such plan or program
is barred by the terms of the governing insurance policy or otherwise, the
Company shall provide the Executive and/or her dependent benefits that are
substantially similar to the benefits that the Executive and/or her dependent
would have enjoyed as a participant in the applicable plan or program.
4. Additional Protections: Notwithstanding the cancellation of the
Employment Agreement and the Executive's termination of employment, the
Executive's rights to the benefits set forth in Exhibit C to the Employment
Agreement (the "Exhibit") shall continue in effect following the Termination
Date to the extent described below:
(a) If, following the Termination Date and on or before December 31,
2000, a "Change in Control Event" (as hereinafter defined) occurs, the Executive
shall be entitled to an immediate cash payment of $175,000.00 and to the
benefits described in paragraphs 4(iii)(D),
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4(vi), 4(vii), 4(ix) and 4(x) of the Exhibit as if the Executive had remained
employed with the Company until the Change in Control Event and terminated
employment on the date immediately after the Change in Control Event for "Good
Reason" (as defined in the Exhibit). In addition, any option or restricted share
award outstanding as of the day before the Termination Date shall remain
outstanding as if the Executive had remained employed until the Change in
Control Event and terminated on the following date for Good Reason and the
Executive shall be entitled to full accelerated vesting and exercisability of
such option and restricted share awards as of the date of the Change in Control
Event and the options shall not terminate before the 10th anniversary of the
original date of grant. The Executive shall have all rights available to any
other current or former executive of the Company with respect to the manner of
exercise of the options and any right to elect a cash payment in lieu of vesting
or exercise of the options or restricted shares. Notwithstanding the foregoing,
no such option or restricted share award shall vest or become exercisable unless
a Change in Control Event occurs on or before December 31, 2000, and if no
Change in Control Event occurs on or before that date the options and restricted
shares shall terminate and forfeit. The Company shall, if elected by the
Executive by written notice to the Company within 60 days after the Change in
Control Event, pay to the Executive an amount (i) with respect to any option
outstanding as of the day before the Termination Date, the product of (A) the
number of shares of common stock subject to the option as of the day before the
Executive's Termination Date and (B) the difference between highest market value
per share of the Company's common stock on, or within 180 days before, the
Change in Control Event and the aggregate exercise price for such options, and
(ii) with respect to any restricted shares outstanding as of the day before the
Termination Date, the product of (A) the number of restricted shares and (B) the
highest market value per share of the Company's common stock on, or within 180
days before, the Change in Control Event. A "Change in Control Event" shall
occur if a "Change in Control" (as defined in the Exhibit) occurs, or any party
enters into an agreement the consummation of which would constitute a Change in
Control, or any public announcement is made of a pending transaction that, if
consummated, would constitute a Change in Control. For purposes of determining
the Executive's rights pursuant to this Agreement and the Exhibit, a Change in
Control Event shall be treated as a Change in Control.
(b) If at any time the Executive is subjected to the excise tax
imposed under Section 4999 of the Internal Revenue Code of 1986, as amended, or
any successor provision (an "Excise Tax"), with respect to any payments from the
Company or any affiliate, whether pursuant to this Agreement or otherwise, then
the Executive shall be entitled to a Gross-up Payment as provided in paragraphs
4(vi) and 4(vii) of the Exhibit. Such Gross-up Payment shall be provided within
10 days of a written demand by the Executive setting forth a written statement
that an Excise Tax has been imposed or asserted. The Company shall be
responsible for any interest or penalties imposed on the Executive as a result
of the late payment of any Excise Tax, and shall pay to the Executive an
additional Gross-Up Payment with respect to any such penalties or interest paid
by the Company.
5. Nondisparagement:
(a) As a material inducement to the Company to enter into this
Agreement, the Executive represents and warrants that she has not publicly or
privately criticized or disparaged the Company in a manner intended or
reasonably calculated to result in public embarrassment or injury to the
reputation of the Company and the Executive agrees that she will
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not publicly or privately criticize or disparage the Company in a manner
intended or reasonably calculated to result in public embarrassment to, or
injury to the reputation of, the Company in any community in which the Company
is engaged in business.
(b) As a material inducement to the Executive to enter into this
Agreement, the Company represents and warrants that it has not publicly or
privately criticized or disparaged the Executive in a manner intended or
reasonably calculated to result in public embarrassment or injury to the
reputation of the Executive, and the Company agrees that it and its affiliates
will not publicly or privately criticize or disparage the Executive in a manner
intended or reasonably calculated to result in public embarrassment or injury to
the reputation of the Executive.
(c) The Company will issue a written press release announcing
Executive's resignation as described in Exhibit A. Except to the extent
disclosed in such release or as required by applicable securities law, neither
party shall disclose the terms of this Agreement to anyone other than, on a
confidential basis, her or its financial and legal advisors or, in the
Executive's case, her family.
6. Assistance with Litigation: The Executive agrees that for a period
of one year after the Termination Date, the Executive will furnish such
information and proper assistance including, without limitation, testimony, as
may be reasonably necessary in connection with any litigation in which the
Company or any affiliate is then or may become involved; provided, however, that
the Executive shall not be required to devote more than forty hours to such
assistance. The Company shall be obligated to pay all of the reasonable expenses
(including attorney fees) incurred by the Executive in providing such services,
and the Executive will be compensated at the rate of $250 per hour for such
services, including services which the Executive agrees (or is required) to
perform beyond the time periods set forth in this Section 6.
7. Nonassignability: Neither this Agreement nor any right or interest
hereunder shall be subject, in any manner, to anticipation, alienation, sale,
transfer, assignment, pledge, encumbrance or charge, whether voluntary or
involuntary, by operation of law or otherwise, any attempt at such shall be
void; and further provided, that any such benefit shall not in any way be
subject to the debts, contract, liabilities, engagements or torts of the
Executive, nor shall it be subject to attachment or legal process for or against
the Executive.
8. Amendment of Agreement: This Agreement may not be modified or
amended except by an instrument in writing signed by the parties hereto.
9. Waiver: No term or condition of this Agreement shall be deemed to
have been waived, nor shall there be an estoppel against the enforcement of any
provision of this Agreement, except by written instrument of the party charged
with such waiver or estoppel.
10. Notices: All notices or communications hereunder shall be in
writing, addressed as follows:
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To the Company:
EEX Corporation
0000 Xxxx Xxxx Xxxx
Xxxxx 0000
Xxxxxxx, Xxxxx 00000
With a Copy to:
Xxxx X. Xxxxxxxxx
Akin, Gump, Strauss, Xxxxx & Xxxx, L.L.P.
0000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
To the Executive:
Xxxxxx Xxxxxxxx
0000 Xxxxxxx
Xxxxxxx, Xxxxx 00000
With a Copy to:
Xxxx Xxxxxxx, Esq.
Xxxxx Xxxxx, L.L.P.
Xxx Xxxxx Xxxxx
000 Xxxxxxxxx
Xxxxxxx, Xxxxx 00000
All such notices shall be conclusively deemed to be received and shall be
effective; (i) if sent by hand delivery, upon receipt, (ii) if sent by telecopy
or facsimile transmission, upon confirmation of receipt by the sender of such
transmission or (iii) if sent by registered or certified mail, on the fifth day
after the day on which such notice is mailed.
11. Severability: If any provision of this Agreement is held to be
invalid, illegal or unenforceable, in whole or part, such invalidity will not
affect any otherwise valid provision, and all other valid provisions will remain
in full force and effect.
12. Counterparts: This Agreement may be executed in two or more
counterparts, each of which will be deemed an original, and all of which
together will constitute one document.
13. Titles: The titles and headings preceding the text of the
paragraphs and subparagraphs of this Agreement have been inserted solely for
convenience of reference and do not constitute a part of this Agreement or
affect its meaning, interpretation or effect.
14. Governing Law: This Agreement will be construed and enforced in
accordance with the laws of the State of Texas.
15. Personal Property: The Executive shall be permitted to remove and
retain all personal property currently located in her office at the Company, and
shall be entitled to remove and retain the chair currently used by the Executive
in her office.
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16. Indemnification: The Company agrees to indemnify and defend
Executive to the extent permitted under Texas law against all losses and
expenses (including reasonable attorneys' fees and expenses) in connection with
any claim arising out of or otherwise related to Executive's services as an
employee or officer of the Company.
17. Waiver And Release By The Company: The Company releases and
forever discharges the Executive from any and all claims, demands, actions,
liabilities and damages arising out of or related to the Employment Agreement or
the Executive's performance as an employee, officer or director prior to the
date hereof.
18. Release by the Executive: In consideration of the mutual
promises, conditions, and covenants set forth below in this Agreement, and in
accordance with the recitals set forth above, the Executive, on behalf of
herself, and each of her heirs, executors, administrators, legal
representatives, successors, assigns, all persons subrogated to the Executive's
rights or whose rights are secondary or derivative of those of the Executive,
and all persons or entities on behalf of whom the Executive is authorized to
act, agrees as follows:
(a) The Executive hereby RELEASES AND FOREVER DISCHARGES EEX
Corporation, its subsidiaries, affiliates, divisions, associates, owners,
stockholders, agents, directors, officers, partners, employees, insurers,
representatives, lawyers, the successors or assigns of any of the foregoing
(collectively referred to as "the Company"), and all persons acting by, through,
under, or in concert with them, or any of them, of and from any and all manner
of action or actions, cause or causes of action, at law or in equity, suits,
debts, liens, contracts, agreements, promises, liability, claims, demands,
damages, loss, cost or expense, of any nature whatsoever, presently known to the
Executive or of which the Executive reasonably should have known, fixed or
contingent (hereinafter called "claims"), which the Executive now has or may
hereafter have against the Company by reason of any matter, cause, or thing
whatsoever arising from the first day of her employment with the Company through
the Termination Date. Without limiting the generality of the foregoing, the
claims released herein include any claims arising out of, based upon, or in any
way related to:
(1) any property, contract, or tort claims, including any and all
claims of wrongful discharge, breach of employment contract, breach of any
covenant of good faith and fair dealing, retaliation, intentional or negligent
infliction of emotional distress, negligence, misrepresentation, loss of
consortium, breach of fiduciary duty, violation of public policy, or any other
common law claim of any kind;
(2) any violation or alleged violation of Title VII of the Civil
Rights Act of 1964, as amended, the Age Discrimination in Employment Act, as
amended, the Older Workers Benefit Protection Act of 1990, the Equal Pay Act, as
amended, the Fair Labor Standards Act, the Employee Retirement Income Security
Act, the Americans With Disabilities Act, the Texas Labor Code, the Texas
Unemployment Insurance Act, the Texas Worker's Compensation Act, the Civil
Rights Act of 1866, the Consolidated Omnibus Budget Reconciliation Act, or any
other federal, state, or local statute, regulation, or ordinance, including
without limitation any claim for sex discrimination, harassment, or retaliation
under the aforementioned statutes;
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(3) any claim relating to or arising under any other local, state, or
federal statute or principle of common law (whether in contract or in tort)
governing the employment of individuals, discrimination in employment and/or the
payment of wages or benefits; and
(4) any claim that the Company has acted improperly, illegally, or
unconscionably in any manner whatsoever at any time prior to the execution of
this Agreement.
(b) The Executive represents and warrants that she is the only person
who may be entitled to assert any claims on her own behalf against the Company
arising from her employment with the Company, and that she has not assigned or
conveyed to anyone else any part of or interest in her claims against the
Company. The Executive agrees to indemnify and hold the Company harmless from
any liability, demand, cost, expense, or attorney's fee incurred as the result
of the assertion of any such claim or claims by any other person based on such
an assignment or conveyance from the Executive.
(c) The provisions of this Agreement are not a release or waiver by
the Executive of her rights to enforce this Agreement (including, but not
limited to, non-disparagement as set out in paragraph 5(b) above), her rights
under Company employee benefit plans or programs, her right to assert any claims
not covered by this section, or her right to assert claims that are presently
unknown to her relating to breach of privacy, defamation or tortious
interference with existing or prospective business opportunity.
19. No Admission of Liability: The parties to this Agreement
understand and agree that nothing in this Agreement shall be construed as an
admission of liability by the Company, and that all allegations of liability are
expressly denied.
20. Enforceability: This Agreement shall not be subject to attack on
the ground that any or all of the legal theories or factual assumptions used for
negotiating purposes and not expressed herein are for any reason inaccurate or
inappropriate.
21. Enforcement of Agreement: If Executive brings an action to
enforce her rights hereunder, the prevailing party shall be entitled to recover
her or its costs and expenses, including court costs and attorney's fees,
incurred in connection with such suit.
22. Third-Party Beneficiaries: The Executive and the Company agree
that the terms of this Agreement, including but not limited to the releases of
claims by the Executive, will inure to the benefit of the Company's
subsidiaries, affiliates, divisions, associates, owners, stockholders, agents,
directors, officers, partners, employees, insurers, representatives, lawyers,
the successors or assigns of any of the foregoing, and all persons acting by,
through, under, or in concert with them, or any of them.
23. Entire Agreement: The matters set forth in this Agreement
constitute the sole and entire agreement between the Executive and the Company
and supersede all prior agreements, negotiations, and discussions between the
parties hereto and/or their respective counsel with respect to the subject
matter hereof. No other representations, covenants, undertakings, or other prior
or contemporaneous agreements, oral or written, regarding the matters set forth
in this Agreement shall be deemed to exist or bind any of the parties hereto.
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Each party understands and agrees that it has not relied on any statement or
representation by the other party or any of its representatives in entering into
this Agreement, except such statements and representations as are set forth in
this Agreement.
24. Voluntary Execution: This Agreement has been entered into as a
result of arms-length negotiations between the parties and counsel for the
parties, and the parties each represent that they are voluntarily executing this
Agreement after an adequate opportunity to consult with counsel of their
choosing regarding its meaning and effect.
25. Attorneys Fees: The Company shall reimburse the Executive for all
reasonable legal fees and expenses necessarily incurred by Executive to enforce
her rights or benefits provided for in this Agreement.
26. Successors: This Agreement shall inure to the benefit of and be
binding upon personal or legal representatives, executors, administrators,
successors, heirs, distributees, devisees and legatees of the parties hereto.
27. No Mitigation: No amount payable to the Executive hereunder, and
no benefits provided to the Executive or her dependent hereunder, shall be
subject to mitigation or offset for earnings and benefits by Executive
subsequent to the Termination Date.
IN WITNESS WHEREOF, the parties have executed this Agreement on June
26, 2000, but effective as of the date and year first above written.
THE EXECUTIVE: THE COMPANY:
/s/ Xxxxxx Xxxxxxxx By: /s/ T. M Xxxxxxxx
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Xxxxxx Xxxxxxxx (Signature)
(Signature)
Xxxxxx Xxxxxxxx T. M Xxxxxxxx
------------------- -----------------
(Printed Name) (Printed Name)
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EXHIBIT A
Effective as of June 30, 2000, Xxxxxx Xxxxxxxx has elected to resign
from the offices of Senior Vice President, Legal and Human Resources, General
Counsel and Corporate Secretary of the Company to pursue other interests.
