EXHIBIT 10.83
EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement") is made and entered into this
19th day of March, 2003 by and between Mirant Services, LLC (hereinafter
"Mirant"), and Xxxxxx Xxxxxx (hereinafter "Streek").
WITNESSETH:
WHEREAS, Mirant desires to secure the services of Streek as an
executive of Mirant; and WHEREAS, Streek desires to be employed by Mirant in
this capacity; and
WHEREAS, Mirant and Streek wish to enter into this Employment Agreement
setting forth the terms and conditions of such employment,
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, the parties hereby agree as follows:
1. Employment Duties. Mirant hereby agrees to employ Streek as
its Vice President and Controller and Streek hereby agrees to accept such
employment upon the conditions set forth in this Agreement. During the term of
this Agreement, Streek agrees to be a full-time employee of Mirant and devote
his full and exclusive business time, energy and skill to the business and
affairs of Mirant. He shall perform all of his duties properly and faithfully in
the best interest of Mirant and will not intentionally become involved in any
personal matters which adversely affect or reflect on Mirant.
2. Work Standard. Streek hereby agrees that he will at all times
comply with and abide by all terms and conditions set forth in this Agreement,
and all applicable policies, procedures, and rules as may be issued by Employer,
including the Code of Ethics and Business Conduct.
3. Term. The term of this Agreement is for two years from March
1, 2003. At the end of the term of this Agreement, if it has not been terminated
earlier pursuant to Xxxxxxx 0, Xxxxxx will become an at-will employee of Mirant.
4. Compensation.
(a) Salary. At the commencement of this Agreement,
Mirant shall pay Streek a salary of $250,000 per year, minus all normal and
customary withholdings, paid in accordance with Employer's normal payroll
practices. Mirant shall evaluate the compensation provided to Streek on an
annual basis and shall make such adjustments as Mirant deems appropriate, with
the understanding that Streek's salary will not be reduced during the term of
this Agreement without his consent.
(b) Bonus. Streek is eligible to participate in a
discretionary bonus plan maintained by Mirant for the purpose of paying bonuses
to qualified employees ("Short Term Incentive Plan"). Under the terms of the
Short Term Incentive Plan, Streek shall have a target bonus of 50%, which will
be tied to the same goals as those of other participants in the Short Term
Incentive Plan, and will pay out according to those goals.
5. Fringe Benefits.
(a) Employee Benefits. Streek shall be entitled, during
the term of this Agreement, to participate in all employee benefit programs
maintained by Mirant for the benefit of its employees, according to the terms of
such plans.
(b) Vacation. Streek shall be entitled to four (4) weeks
of vacation each year during the term of this Agreement.
6. Termination of Employment.
(a) Death or Disability. In the event of Streek's death
or total disability, this Agreement shall terminate immediately. Streek shall be
deemed totally disabled if he is eligible to receive long-term disability
benefits under Mirant's then existing long-term disability plan. In
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the event of his death or disability, Streek or his estate will be entitled to
such benefits, if any, as are provided under the terms of various Mirant health
insurance, life insurance, pension and disability plans.
(b) Termination for Cause. Mirant may terminate this
Agreement and Streek's employment immediately hereunder for: 1) any nonapproved
absence from work, unrelated to illness or physical incapacity, in excess of
thirty (30) continuous days; 2) any acts or conduct by Streek involving moral
turpitude that could reasonably be expected to interfere with his ability to
perform the functions of his job; 3) any material dishonesty in the performance
of his duties as an employee of Mirant; 4) any willful or gross negligence by
Streek in complying with the terms of this Agreement or in performing his duties
for Mirant; 5) any material breach of this Agreement; 6) any unauthorized
disclosure of Confidential Information regarding Mirant. In the event of a
termination pursuant to this subparagraph 5(b), Streek will not be entitled to
any further benefits or compensation under this Agreement except to the extent
mandated by law or as otherwise agreed to at the time by Mirant and Streek.
(c) Termination by Mirant by Notice. Mirant shall have
the additional right to terminate this Agreement and Streek's employment without
cause by giving Streek written notice of termination. Such termination shall be
effective immediately upon receipt of notice by Streek. In the event of a
termination pursuant to this subsection, Streek will be entitled to a lump sum
payment, minus required withholdings, equal to the number of whole or partial
months remaining in the agreement at the time of notice, though not to exceed 12
months, multiplied by $20,833. This amount represents Streek's monthly base
salary at the time of initial employment. The dollar amount used in this
calculation will not change during the term of this Agreement.
(d) Termination by Streek. Streek may resign on sixty
(60) days written notice to Mirant. During any notice period, Mirant may relieve
Streek of his duties, but this
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shall not relieve Mirant of its obligations to pay Streek his entire salary for
the entire notice period. At the conclusion of such notice period, he will not
be entitled to any further compensation or benefits hereunder, other than
previously accrued and vested benefits.
(e) Termination After Term of Agreement. To avoid
confusion, the parties agree that after the term of this Agreement, Streek will
be an at-will employee of Mirant and may be terminated by Mirant for any reason,
or no reason, in accordance with the termination procedures then in effect at
Mirant.
7. Covenant Not To Solicit
(a) Definitions.
(i) "Entity" shall mean any business,
individual, partnership, joint venture, agency, governmental
subdivision, association, firm, corporation or other entity.
ii) "Affiliate" shall mean the following
Entities: (A) any Entity which owns an Interest (as defined below) in
Mirant or Mirant Corporation either directly or indirectly through any
other Entity, (B) any Entity an Interest in which is owned directly or
indirectly by any Entity which owns directly or indirectly an Interest
in Mirant, (C) any Entity in which Mirant owns an Interest either
directly or indirectly through any other Entity, or (D) any Entity
which owns an Interest either directly or indirectly in an Entity an
Interest in which is owned either directly or indirectly by Mirant. For
purposes of this Agreement the term "Interest" shall include any equity
interest in an Entity in an amount equal to or greater than 10% of the
Entity's total outstanding equity interests.
(b) Non-Solicitation of Employees. For a period of two
years following the termination of Streek's employment with Mirant, Streek shall
not solicit or attempt to solicit, directly or indirectly by assisting others,
any employees of Mirant, its Entities or Affiliates in order to induce such
employees to leave Mirant, its Entities or Affiliates or become employed or
affiliated with any other person, company or entity.
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(c) Injunctive Relief. Streek acknowledges that the
covenant not to solicit is a reasonable means of protecting and preserving
Mirant's, its Entities and Affiliates investment in its business and in Streek's
employment. Streek agrees that any breach of this covenant will result in
irreparable damage and injury to Mirant, its Entities and Affiliates and that
Mirant will be entitled to injunctive relief in any court of competent
jurisdiction without the necessity of posting any bond.
(d) Enforceability of Covenant. Mirant and Streek agree
that Streek's obligation under the covenant not to solicit is separate and
distinct from other provisions of this Agreement, and the failure or alleged
failure of Mirant to perform its obligations under any other provisions of this
Agreement shall not constitute a defense to the enforceability of this covenant
not to solicit. The parties also agree that the covenant not to solicit survives
the expiration or termination of this Agreement.
8. Nondisclosure of Trade Secrets and Confidential Information.
(a) Trade Secrets Defined. As used in this Agreement, the
term "Trade Secret" shall mean any and all information not generally known to
persons not employed by Mirant, its Entities or Affiliates, the disclosure or
knowledge of which would permit these persons to derive actual or potential
economic value therefrom or to cause economic or financial harm to Mirant, its
Entities or Affiliates. Such information shall include, but not be limited to,
any customer lists, customer billing information, technical information
regarding products sold, sales techniques and information concerning personnel
assignments, and matters concerning the financial affairs and management of
Mirant, its Entities or Affiliates.
(b) Nondisclosure of Trade Secrets. Throughout the term
of this Agreement and at all times following the expiration or termination of
this Agreement, Streek shall not directly or indirectly transmit or disclose any
trade secret of Mirant, its Entities or Affiliates to any person, concern or
entity.
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(c) Confidential Information Defined. As used in this
Agreement, the term "Confidential Information" shall mean all information that
does not rise to the level of a trade secret and that is not generally disclosed
or known to persons not employed by Mirant, its Entities or Affiliates.
(d) Nondisclosure of Confidential Information. Throughout
the term of Streek's employment with Mirant and for a period of three years
following the termination of Streek's employment with Mirant, Streek shall not,
either directly or indirectly, transmit or disclose any confidential information
to any person, concern or entity.
(e) Notification of Unauthorized Disclosure. Streek shall
exercise his best efforts to ensure the continued confidentiality of all Trade
Secrets and Confidential Information known by, disclosed or made available to
Streek. Streek shall immediately notify Mirant of any unauthorized disclosure or
use of any Trade Secrets or Confidential Information of which Streek becomes
aware. Streek shall assist Mirant, to the extent necessary, in the procurement
or protection of Mirant's or its Entities' or Affiliates' rights to or in any
Intellectual Property, Trade Secrets or Confidential Information and, upon
Mirant's request, shall assist, to the extent necessary, in the procurement or
protection of any third party's rights to or in any Intellectual Property, Trade
Secrets or Confidential Information.
(f) Injunctive Relief. Streek acknowledges that these
nondisclosure covenants are a reasonable means of protecting and preserving
Mirant's, its Entities or Affiliates interests in the confidentiality of this
information. Streek agrees that any breach of these covenants will result in
irreparable damage and injury to Mirant, its Entities or Affiliates and that
Mirant will be entitled to injunctive relief in any court of competent
jurisdiction without the necessity of posting any bond.
(g) Enforceability of Covenants. Mirant and Streek agree
that Streek's obligations under these nondisclosure covenants are separate and
distinct from other provisions
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of this Agreement, and the failure or alleged failure of Mirant to perform its
obligations under any provision of this Agreement shall not constitute a defense
to the enforceability of these nondisclosure covenants. The parties also agree
that the nondisclosure covenants survive the expiration or termination of this
Agreement.
9. Intellectual Property.
(a) Definition. "Intellectual Property" shall mean all
work product, property, data, documentation, know-how, concepts or plans,
inventions, discovery, compositions, innovations, computer programs,
improvements, techniques, processes, designs, article of manufacture or
information of any kind, or any new or useful improvements of any of the
foregoing and any Trade Secrets, patents, copyrights, Confidential Information,
mask work, trademark or service xxxx, relating in any way to Mirant, its
Entities or its Affiliates and its or their business prepared, conceived,
revised, discovered, developed, or created by Streek for Mirant, its Entities or
its Affiliates or by using Mirant's, it Entities' or its Affiliates' time,
personnel, facilities, or material.
(b) Ownership. To the greatest extent possible, any and
all Intellectual Property shall be deemed to be "work made for hire" (as defined
in the Copyright Act, 17 U.S.C.A. xx.xx. 101 et seq.), and Streek hereby
unconditionally and irrevocably transfers and assigns to Mirant, its Entities or
its Affiliates all rights, title and interest Streek currently has or in the
future may have by operation of law or otherwise in or to any Intellectual
Property, including, without limitation, all patents, copyrights, trademarks,
service marks and other Intellectual Property rights and agrees that Mirant, its
Entities or its Affiliates shall have the exclusive world-wide ownership of such
Intellectual Property, and that no Intellectual Property shall be treated as or
deemed to be a "joint work" (as defined by the Copyright Act) of Streek and
Mirant, its Entities, its Affiliates or otherwise. Streek agrees to execute and
deliver to Mirant, its Entities or its Affiliates any transfers, assignments,
documents or other instruments which Mirant, its Entities or its Affiliates may
deem necessary or appropriate to vest complete
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title and ownership of any Intellectual Property, and all rights therein,
exclusively in Mirant, its Entities or its Affiliates, as the case may be.
(c) Return of Materials. Immediately upon termination of
this Agreement, or at any point prior to or after that time upon the specific
request of Mirant, Streek shall return to Mirant all written or descriptive
materials of any kind belonging or relating to Mirant, its Entities or its
Affiliates, including, without limitation, any Intellectual Property,
Confidential Information and Trade Secrets, in Streek's possession.
10. Miscellaneous.
(a) Public Statements. Mirant shall issue all public
statements concerning the work hereunder; Streek shall not issue any public
statements concerning such work without prior written authorization from Mirant.
(b) Notices.
(i) All notices and all other communications
provided for herein shall be in writing and delivered personally to the
other designated party, or mailed by certified or registered mail,
return receipt requested, or delivered by a recognized national
overnight courier service, or sent by facsimile, as follows:
If to Employer to: Chief Financial Officer
Mirant Corporation
0000 Xxxxxxxxx Xxxxxx Xxxx
Xxxxxxx, XX 00000-0000
Facsimile:
with a copy to: Legal Department
Mirant Services, LLC
0000 Xxxxxxxxx Xxxxxx Xxxx
Xxxxxxx, XX 00000-0000
If to Streek to: Xx. Xxxxxx Xxxxxx
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If Streek has provided notice to Mirant that counsel
represents him, Mirant shall copy Streek's counsel at the address
specified. Streek agrees and understands that any legal fees or
expenses incurred by him in connection with this Agreement are his sole
responsibility and Mirant shall not reimburse Streek for any portion of
such fees or expenses.
ii) All notices sent under this Paragraph shall
be deemed given twenty-four (24) hours after sent by facsimile or
courier and seventy-two (72) hours after sent by certified or
registered mail.
iii) Either party hereto may change the address
to which notice is to be sent hereunder by written notice to the other
party in accordance with the provisions of this Paragraph.
(c) Waiver. The waiver by any party to this Agreement of
a breach of any of the provisions of this Agreement shall not operate or be
construed as a waiver of any subsequent breach.
(d) Severability. The invalidity or unenforceability of
any particular provision of this Agreement shall not affect the other provisions
of this Agreement, and this Agreement shall be construed in all respects as if
such invalid or unenforceable provision were omitted.
(e) Assignment and Successors. This Agreement may be
assigned by Mirant without Streek's consent to an affiliated entity of Mirant,
including one of Mirant's affiliates, any survivor entity or other successor in
interest, but no such assignment shall relieve Mirant of its full
responsibilities hereunder. This Agreement shall inure to the benefit of and be
binding upon the parties hereto and upon their respective legal representatives
and successors in interest.
(f) Entire Agreement. This Agreement constitutes the
entire Agreement between the parties with respect to the subject matter hereof
and supersedes any prior agreements.
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(g) Governing Law. This Agreement shall be governed by
the laws of the State of Georgia, without regard to its principles of conflicts
of laws.
(h) Voluntary Agreement. Streek and Mirant represent and
agree that each has reviewed all aspects of this Agreement, has carefully read
and fully understands all provisions of this Agreement, and is voluntarily
entering into this Agreement. Each party represents and agrees that the judicial
body interpreting this Agreement shall not more strictly construe the terms of
this Agreement against one party, it being agreed that the Parties had the
opportunity to review any and all aspects of this Agreement with legal, tax or
other adviser(s) of such party's choice before executing this Agreement.
IN WITNESSES WHEREOF, the parties hereto having duly executed and
delivered this Employment Agreement as of the date first written above.
MIRANT SERVICES, LLC
By: /s/ Xxxxx Xxxxxx [SEAL]
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/s/ Xxxxxx Xxxxxx [SEAL]
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Xxxxxx Xxxxxx
/s/ Xxxxx Xxxxxxx
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Witness
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